BOTTOM STREET BAR IN FLINT BURNS

62847_10150274272310363_645845362_14863768_669310_n,
originally uploaded by terrybankert.

BOTTOM STREET BURNS


http://www.flickr.com/photos/30366181@N05/sets/72157624860687069/

DIVE BAR BURNS, was it intentional?




Yesterday we saw on the news “Flint fire crews responded to a fire around 6:30 p.m. on the corner of Chevrolet and Glenwood, near Kettering University and the old "Chevy in the Hole" site. “[1]

Thumbnail

http://www.flickr.com/photos/30366181@N05/sets/72157624860687069/






Slideshow

http://www.flickr.com/photos/30366181@N05/sets/72157624860687069/show/






Crews face a large commercial structure fire, and investigators say it was set on purpose.[2]

BOTTOM STREET AT THE TOP OF THE HILL

The fire occurred at “Bottom Street” 420 S. Chevrolet Ave.
Flint, MI. 48503[3]

BURNED BAR OWNED BY LEO KILGO



By going to the City of Flint Property look up this address shows as the owner Leo Kilgo [5] Mr. Kilgo is a resident of Burton. The building is located in a Flint Renaissance Zone. Summer taxes in the amount of $360.41 are owed. The building has an assessed valuation of $7,600.  Records show that Mr.  Leo J. Kilgo is associated with an Internal revenue Service  tax lein in the amount of $41,710.



THE LOCAL POLITICAL AND UNION LEADERS DRANK HERE WITH THE RANK AND FILE



Ironic name because it was at the top of the hill and had as its patrons the important and not so important from union official, sherrifs, prosecutors, skilled tradesmen to the neighborhood.



THIS BUILDING HAS BEEN VACANT FOR LESS THAT 10 YEARS

The building, which used to be a bar, has been vacant for more than 30 years. [1]

Investigators say the structure had been vacant for the last five to seven years.[2]


Crews allowed the blaze to burn near Kettering University in Flint.[2]


Because it was too dangerous to fight, fire crews said they took the defensive approach and let the building burn. [1]

It started around 6pm Saturday. No one was inside.[2]

ARSON IS EXPECTED WHO HAD MOTIVE OR JUST ILL WILL?

The fire is believed to be intentionally set. [1]



Flint Battalion Chief Theresa Root says, "It's just a little harder when we receive a commercial vacant structure fire because of the intensity, the heat, the smoke for the surrounding neighborhoods. It's just a lot more work."[2]

No one was injured in the fire.[2]

Witnesses say they saw three people walking away from the building.[2]



THERE MAY BE A BOOK OUT THERE



Jeff Blanchard on his My Space page gives himself credit for helping to write the book’ Bottom Street the untold story”[4]



:Posted here by

Terry Banker

http://www.attorneybankert.com/








[1]

http://abclocal.go.com/wjrt/story?section=news/local&id=7675830


[2]

http://www.connectmidmichigan.com/news/story.aspx?id=513652


[3]

http://www.flintonline.com/nightLife/details.cfm?ID=7


[4]

http://www.myspace.com/blanchard40


[5]

http://www.ci.flint.mi.us/propertytaxes/Parcel.asp


[6]

http://www.ci.flint.mi.us/propertytaxes/display.asp?parcel=40-13-304-009


[7] The not cited inclusive of the cap headlines are terry Bankerts all pictures taken by Terry Bankert

Sphere: Related Content

ROBOTIC COMPETITION AT KETTERING

ROBOTIC COMPETITION AT KETTERING,
originally uploaded by terrybankert.

Kettering University 2010 Robotic Competition photos and video. Please use
Picture and video thumbnail
http://www.flickr.com/photos/30366181@N05/sets/72157624982445550/
slideshow
http://www.flickr.com/photos/30366181@N05/sets/72157624982445550/
KETTERING PRESS RELEASE


September 16, 2010 07:00 AM Eastern Daylight Time

Kettering University Hosts 39 Robot Teams at Kettering Kickoff Sept. 18

FLINT, Mich.--(BUSINESS WIRE)--The 11th annual Kettering Kickoff Robotics contest will feature 39 teams, including one from Israel, on Saturday, Sept. 18, at Kettering University in Flint, Mich. Many of Michigan’s best high school FIRST robotics teams will compete in Kettering’s Recreation Center from 8 a.m. to 5 p.m. The event is free.

Kettering Kickoff Founder Bob Nichols said this year’s Kickoff roster features 39 teams – one from Israel and the rest from Michigan. “We are delighted to have an international team as part of our competition this year.”

The Kettering Kickoff is a popular annual robotics competition of the mind that matches the 2010 robots from FIRST Robotics with 2011 high school teams. Nichols said the event allows teams to build skills and camaraderie before the FIRST competition season begins in January.

During the Kettering Kickoff, a variety of GM and Ford automobiles will be on display. Dealerships providing cars include Patsy Lou Williamson, Al Serra and Lasco Ford.

Teams competing on Sept. 18 at Kettering are:
Team 27, Team RUSH, Clarkston
33, Killer Bees, Auburn Hills
51, Wings of Fire, Pontiac
66, Flyers, Ypsilanti
70, More Martians, Goodrich
217, ThunderChickens, Sterling Heights
247, Dabears, Berkley
302, Dragons, Lake Orion
314, Megatron Oracles, Flint
322, F.I.R.E., Flint
326, Xtreme Eagles, Romulus
397, Knight Riders, Flint
468, Baker Explorers, Flint
469, Las Guerrillas, Bloomfield Hills
494, Martians, Goodrich
503, Frog Force, Novi
548, Robostangs, Northville
703, Team Phoenix, Saginaw
862, Lightning Robotics, Canton
894, Powers Chargers, Flint
903, Robotroopers, Detroit
910, Foley Freeze, Madison Heights
1189, Gearheads, Grosse Pointe
1243, Dragons, Swartz Creek
1322, G.R.A.Y.T. Leviathons, Fenton
1506, Metal Muscle, Flint
1684, Golden Eagles, Lapeer
1718, The Fighting Pi, Armada
1946, FG – Tamra, Tamra, Israel
2137, The Oxford RoboCats, Oxford
2145, HAZMATs, Lake Fenton
2337, EngiNERDS, Grand Blanc
2604, Metal & Soul, Capac
2612, Waterford Mott Destroyers, Waterford
2619, The Charge, Midland
2832, The Livonia Warriors, Livonia
3096, Finney Highlanders, Detroit
3401, Eagletrons, Orchard Lake
3415, The RAMS, Montrose

Sphere: Related Content

Judge Arthur J. Tarnow ruled IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction is DENIED.

Attorney F. Anthony Lubkin,
originally uploaded by terrybankert.

09/17/10 Attorney Lubkin informed Good Morning Flint that the Federal Court has denied the recall committees request for a preliminary injunction. The opinion follows.






UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID DAVENPORT ET AL.,

Plaintiffs,

v.

GENESEE COUNTY ET AL.

Defendants.

/

Case No. 10-CV-13503

Honorable Arthur J. Tarnow

United States District Judge

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY

INJUNCTION [5]

I. INTRODUCTION

Plaintiffs have filed this case claiming constitutional violations in the way Defendants

have processed the petitions seeking to place the question of the recall of Mayor Walling on the

November 2, 2010 ballot. Plaintiffs also claim that the challenge to their recall petitions filed by

the entity “Friends of Dayne Walling” was invalid, as it was not filed by Dayne Walling himself.

Plaintiffs seek a preliminary injunction to compel Defendants to place the recall on the

November ballot. Plaintiffs claim that the procedures used to verify the signatures on the recall

petitions were arbitrary, which resulted in constitutional violations. They specifically claim that

the Michigan recall laws as applied to them violated their First, Fifth, and Fourteenth

Amendment rights.

The Court disagrees for the following reasons and denies the motion for preliminary

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 1 of 10

2

injunction.

II. BACKGROUND

Procedural History

Plaintiffs filed a complaint in the Genesee County Circuit Court on August 31, 2010.

Defendants then removed the case to this Court on September 2, 2010. On September 3, 2010,

Plaintiffs filed a Motion for Preliminary Injunction that is now before the Court.

Review Process

The statutory period allowed for reviewing petitions is thirty-five days. TRO Hr’g Tr.

9, Sept. 9, 2010 [hereinafter TRO Tr. 1]. The petitions are first filed with the County Clerk, who

has seven days to do a preliminary examination of the signatures. Id. The City Clerk has fifteen

days to review the signatures for any defects. The official who is the subject of the recall has

eight days to file a challenge. If there is a challenge filed, then the City Clerk has five additional

days to review the challenged signatures. TRO Hr’g Tr. 9-11, Sept. 10, 2010 [hereinafter TRO

Tr. 2]. On September 10, 2010, the parties stipulated that 8,004 signatures were required. Id. at

9.

Facts

The Committee to Recall Dayne Walling and Plaintiff Davenport collected signatures for

petitions to recall the Flint mayor, Dayne Walling. They filed the petitions on July 29, 2010

with the County Clerk. TRO Tr. 1, 2. Plaintiffs submitted more than 14,000 signatures on the

recall petitions. Tr. 2, 8. Plaintiffs received a receipt for submitting 13,738 signatures after 300

were invalidated for obvious statutory deficiencies. Within seven days of the submission of the

petitions, the County Clerk rejected some of the signatures and 12,779 signatures were

forwarded to the City Clerk. Id.

The City Clerk reviewed and removed more signatures leaving 8,267. TRO Tr. 1, 11.

The County Clerk and City Clerk removed signatures if they did not meet the statutory

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 2 of 10

1The Court accepted the ratification by Mayor Walling, rendering the challenge by the Friends of

Dayne Walling valid for the reasons stated on the record. TRO Tr. 2, 73.

3

requirements, if the signature did not match the signature in the voting file, or if other

irregularities were present. See TRO Hr’g Tr., Sept. 14, 2010 [hereinafter TRO Tr. 3].

A challenge to the recall was raised with the County Clerk by an entity called “Friends of

Dayne Walling”. TRO Tr. 1, 11-12. Mayor Walling ratified the challenge made by the Friends

of Dayne Walling that was made on his behalf.1 Def. Carr’s Resp. to Pls.’ Mot. for Prelim. Inj.,

Ex. B at 3; see also TRO Tr. 2, at 6, 73. The County Clerk reviewed the challenge by the

Friends of Dayne Walling. TRO Tr. 1, 12. On August 31, 2010, he determined that there were

7,484 valid signatures. Id. The Clerk’s office then notified Plaintiffs and the challenger of the

outcome in a letter dated August 31, 2010, the same day that Plaintiff filed suit in Genesee

County Circuit Court. TRO Tr. 1, 12. The case was removed to this Court.

Evidentiary Hearing

This Court held three hearings on Plaintiffs’ Motion for Preliminary Injunction, including

an evidentiary hearing on September 14, 2010. The Clerk of the City of Flint testified. The

Clerk serves as the chief election official for the City of Flint. The Clerk is responsible for

reviewing recall petitions. This recall was handled the same as other recalls.

The Clerk testified that it is her office’s policy to “err on the side of the voter” if there is

an ambiguity. TRO Tr. 3, 49. She stated that her employees are trained and instructed to review

petitions to make sure that they are properly completed. See TRO Tr. 3. They compare the

signature on the petition with the original voter registration file.

The Clerk testified that she and her staff use codes to identify invalid signatures. The

Secretary of State has identified acceptable invalidation codes. The Secretary of State has also

afforded the local clerks with latitude in developing and using other invalidation codes. Id. at

49. The Clerk developed additional codes because “[she] want[ed] to be very clear in terms of

why the signature was being disqualified as opposed to putting it in a miscellaneous category.”

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 3 of 10

2 Here, Plaintiffs do not challenge the statutory scheme on its face.

4

TRO Tr. 3, 64.

III. STANDARD OF REVIEW

Plaintiff is seeking injunctive relief to order the Genesee County Clerk to restore

signatures stricken and to place the recall on the ballot for the November 2, 2010 election.

“A preliminary injunction is reserved for only the most egregious case, and should not be

extended to cases which are doubtful or do not come within well-established principles of law.”

Bonnell v. Lorenzo, 241 F.3d 800, 826 (6th Cir. 2001). The moving party has the “burden of

proving that the circumstances clearly demand [an injunction].” Overstreet v. Lexington-Fayette

Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

When evaluating a motion for preliminary injunction, the Court must consider four

factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the

movant would suffer irreparable injury without the injunction; (3) whether issuance of the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by issuance of the injunction.” Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of

Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998)).

IV. DISCUSSION

No single factor is controlling of the outcome, although if “there is simply no likelihood

of success on the merits” that is usually “fatal”. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225

F.3d 620, 625 (6th Cir. 2000).

1. Likelihood of Success on the Merits

a. Plaintiffs’ Constitutional Claim

Plaintiffs claim that the statute M.C.L. § 168.958 as applied was unconstitutional. “A

court may hold a statute unconstitutional either because it is invalid ‘on its face’2 or because it is

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 4 of 10

5

unconstitutional ‘as applied’ to a particular set of circumstances.” Women’s Med. Prof’l Corp. v.

Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). At this stage of the litigation the Plaintiffs do not

have to show that they will succeed on the merits, but that there is a substantial likelihood that

they will succeed on the merits.

b. Legal Framework - Recall Procedures

The Michigan State Constitution affords Michigan voters the right to recall “all elective

officers except judges of courts of record” and identifies the minimum number of signatures

required for a recall petition. Mich. Const., of 1963, art. II, § 8 (1963).

Recall procedures are generally governed by the Michigan Compiled Laws §§ 168.951-

.976. M.C.L. § 168.954 states:

A recall petition shall be signed by the registered and qualified electors of the

electoral district of the official whose recall is sought. Each signer of a recall

petition shall affix his or her signature, address, and the date of signing. A person

who signs a recall petition shall be a registered and qualified elector of the

governmental subdivision designated in the heading of the petition.

Id. at .954. Further, § 168.958 discusses the validity of the signatures on a recall petition,

stating:

A petition sheet shall contain only the signatures of qualified and registered electors

of the city.... A qualified and registered elector may sign the petition sheet in any

location at which the petition sheet is available. A petition is not invalid if it

contains the signature of a person who is not a qualified and registered elector of the

appropriate city. . .listed in the heading of that petition sheet.

Id. at .958.

Specific procedures on recall issues are administratively handled by the Secretary of

State, through the Bureau of Elections, and local clerks’ offices. The State has published various

guides for recall procedures.

c. Analysis

Here, Plaintiffs have not met their burden of showing that there is a strong likelihood that

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 5 of 10

6

they will succeed on the merits. Plaintiffs have not shown that M.C.L. 168.958 was applied to

them in a fashion that violated their constitutional rights.

Plaintiffs allege that Defendants inappropriately removed too many signatures, thus

wrongfully rejecting the recall petitions in violation of their First, Fifth, and Fourteenth

Amendment rights. Plaintiffs specifically contest various practices by the City and County

Clerks: 1) the use of invalidation codes, such as “NHS” (meaning “Not His/Her Signature”)

among others. 2) The disqualification of signatures based on the use of ditto marks in certain

sections of the petitions. 3)The invalidation of signatures because of various other irregularities.

Defendants maintain that the Clerks followed the proper laws in reviewing the recall

petitions. The Court agrees.

In the case of Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir.

1993), voters challenged the denial of ballot certification of an initiative petition after a large

number of signatures were invalidated by the Board of State Canvassers due to statutory

deficiencies. Austin, 994 F.2d at 293-94. Plaintiffs filed a 42 U.S.C. § 1983 action alleging a

violation of their First and Fourteenth Amendment rights. Id. Plaintiffs argued that they were

denied their right to vote by the exclusion of some registered voter signatures because “technical

checks” showed a failure to comply with the Michigan laws on initiatives. Id. at 296. The court

held that the plaintiffs’ right to vote was not violated because there is no authority that holds the

signing of a petition to initiate legislation is entitled to the same protection as exercising the right

to vote. Id.

The Austin court also held that the plaintiffs’ First Amendment rights had not been

violated. The court stated that since “the right to initiate legislation is a wholly state-created

right, we believe that the state may constitutionally place nondiscriminatory, content-neutral

limitations on the plaintiffs’ ability to initiate legislation.” Id. at 297. The court found that

Michigan’s initiative “procedure does nothing more than impose nondiscriminatory, contentneutral

restrictions on the plaintiffs’ ability to use the initiative procedure that serves Michigan’s

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 6 of 10

7

interest in maintaining the integrity of its process.” Id. Further, the court stated that “it is

irrelevant that the state could have chosen a better method of protecting its interest in

guaranteeing an honest initiative system.” Id. at 298 (citing Schweiker v. Wilson, 450 U.S. 221,

230 (1981)).

Similarly, here, Plaintiffs challenge the application of Michigan recall law, a state-created

right, and the removal of petition signatures for various reasons. Plaintiffs especially take issue

with the review methods that were used by the local clerks where the law was silent as to the

exact procedure. Plaintiffs have not shown that the procedures used were inconsistent with

Michigan recall law, nor have they shown that the review method used by the local clerks with

respect to their specific recall petitions was discriminatory, arbitrary, or deliberately designed to

harm Plaintiffs.

Plaintiffs argued that the local clerks used “rogue codes” that were not specifically

approved by the Secretary of State. However, Plaintiffs have not shown any evidence suggesting

that the use of alternate codes is unlawful. In fact, the Clerk of the City of Flint testified that she

was “given latitude” with respect to using more specific codes as a way to mark invalidated

signatures. TRO Hr’g 3, 48. Further, Plaintiffs have not shown how the codes used violated

their constitutional rights. In fact, the Clerk stated that she used the additional codes in order to

be more clear instead of using a miscellaneous code.

Plaintiffs also argued that the disqualification of petition signatures because of the use of

ditto marks in some of the fields of the form was improper. However, according to the Michigan

Bureau of Elections, “in any instance where a signer enters ditto marks in the residential address

entry or the date entry, the signature is invalid and not counted.” BUREAU OF ELECTIONS,

MICHIGAN RECALL PROCEDURES: A GENERAL OVERVIEW (2008), available at

http://www.michigan.gov/documents/sos/Recall_Procedures2_211779.pdf (emphasis in

original). This practice is not unconstitutional.

Plaintiffs raised many general concerns with the signature review procedures with respect

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 7 of 10

8

to the interpretation of the way a number was written, signatures of people with common names

with a change of address, and more. However, it is not up to the Plaintiffs or the Court to

establish signature review procedures. Although Plaintiffs have shown that there are some

people whose signatures were valid yet invalidated erroneously, Plaintiffs have not shown

deliberate error or evidence of an arbitrary process.

Similar to the Austin case, here, Defendants are not required to use the best method of

signature review. Human error is sometimes part of the process. Deference must be given to the

local clerks. Even if the Clerk had wrongfully interpreted or misapplied the law, her actions

would not rise to a Fourteenth Amendment violation, which could only be established with a

showing of discrimination on her part. See Ventre v. Ryder, 176 F. Supp. 90, 94-95 (D.C. La.

1959).

Plaintiffs have not met their burden of showing that there is a substantial likelihood that

they will succeed on the merits.

2. Irreparable Harm

Plaintiffs argue that in the absence of a preliminary injunction they will suffer irreparable

harm. Had Plaintiffs shown that there was deliberate action by Defendants to strike valid

signatures or that the review method used by the clerk was arbitrary, then the issue of irreparable

harm would have been a clear factor in favor of the Plaintiffs because of the three month delay

between the November and February election dates. If the potential three month delay were the

only factor in deciding this issue, then it would probably weigh in favor of Plaintiffs. However,

Plaintiffs did not meet their burden, nor have they shown that they will suffer irreparable harm if

the injunction is not issued.

3. Substantial Harm to Others

Plaintiffs contend that the preliminary injunction would not cause substantial harm to

others because “[e]ither way, ballots will have to be printed . . . .” Pls.’ Reply 12. Defendants

argue that due to the tight timetables surrounding elections, that the deadline for the ballot to be

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9

printed has already passed. Thus, there would be additional costs associated with the ballot

printing. However, Defendants have not established that the extra costs would result in

“substantial harm” to the State. Consequently, this factor cannot weigh against the granting of a

preliminary injunction.

4. Public Interest

Plaintiffs argue that the public interest would be served by the issuance of a preliminary

injunction because it would vindicate the rights of those who validly signed the recall petition.

Plaintiffs argument is not without merit. However, it fails to consider the interests of the

majority of voters that elected Mayor Walling.

More importantly, it ignores the State’s “strong interest in ensuring that its elections are

run fairly and honestly.” Austin, 994 F.2d at 297 (citing Anderson v. Celebreeze, 460 U.S. 780,

788 (1983)). “[A]s a practical matter, there must be a substantial regulation of elections if they

are to be fair and honest and if some sort of order, rather than chaos, is to accompany the

democratic processes.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citing Storer v. Brown,

415 U.S. 724, 730 (1974)). This factor weighs against the issuance of the injunction.

V. CONCLUSION

Although Plaintiffs have shown that there may have been some errors by Defendants in

removing valid signatures, Plaintiffs have not met their burden in showing that the issuance of a

preliminary injunction in this case is warranted.

For the reasons discussed above, and the Court being fully advised in the premises,

Plaintiffs’ Motion for Preliminary Injunction must be denied.

IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction is DENIED.

IT IS SO ORDERED

s/Arthur J. Tarnow

Arthur J. Tarnow

Senior United States District Judge

Case 2:10-cv-13503-SFC -RSW Document 17 Filed 09/17/10 Page 9 of 10

Sphere: Related Content

BABY neeeds a Union!

BABY neeeds a Union!,
originally uploaded by terrybankert.

Baby needs a Union!
http://goodmorningflint.blogspot.com/2010/09/baby-neeeds-union_16.html

Here is a litmus test. You are either pro union or you are not in this case.


[disclaimer this is a blogg and I Terry Bankert am pro organized labor- we are all better off for them.]



In today’s commercial media we saw “Supreme Court orders... lower courts to explain lawsuit dismissal involving Flint Township childcare provider who says her union dues are illegal

Published: Thursday, September 16, 2010, 3:51 PM [1]
 
It seems that a couple anti-union day care workers in Flint township went to the Michigan Court of appeals in a sloppily crafted petition ask for a writ of mandamus to stop union dues from coming our of their State of Michigan Checks.




This township is,a jurisdiction adjacent to Flint the birthplace or organized labor. The Court of Appeals threw them out with a terse dismissal. The Supreme Court has simply suggested today that the Court of Appeals give a little more detail. It seems this affects 40,000 people who have previously decided they need union protection. These child- care providers were previously without a voice.
 
It seems the justices sent the case back to the state appeals court, which had ruled against three women —including Flint Township home-care provider Michelle Berry— with a six-word sentence last year. It should be noted that there was a ...proper election where these workers in their good judgment joined the union.




Lets hope the Court Of Appeals makes short work of their remand.



Terry Bankert

http://www.attorneybankert.com/
 
NOTES


And according to the center, it all started with an agreement with MCC -- which is not named in the lawsuit.[2]



In the lawsuit, plaintiffs Sherry Loar, Michelle Berry and Paulette Silverson requested that the Court of Appeals issue a "writ of mandamus" instructing the Michigan Department of Human Services to stop withholding so-called "union dues" from government child care subsidies sent to them and approximately 40,000 other home-based day care providers on behalf of low-income parents. The money withheld by the DHS — estimated at more than $2 million annually — is eventually forwarded to Child Care Providers Together Michigan, a union formed by the United Auto Workers and the American Federation of State, County and Municipal Employees. [5]





In 2006, an interlocal agreement between MCC and DHS created quasi-public entity Michigan Home Based Child Care Council - which the firm says is a "shell corporation" that acts as the employer of the state's home-based daycare providers.[2]

The council then contracted with the childcare union - transforming all 40,000 home-based daycare providers, which includes hundreds from Genesee County, into union members. The contract goes until 2010.[2]

"The methodology by which this whole business started was un-constitutional," said Patrick Wright, director of the Mackinac Center Legal Foundation. "Apparently Mott was used in order to create this thing. Once Mott signed this agreement, its role seems to have gone completely away."[2]

MERC conducted a vote by mail in October and November 2006. Of the 40,500 home day care providers who would be effected by this decision, 6,396 voted. The outcome was 5,921 in favor of the union and 475 opposed. Neither Loar, Silverson nor Berry believes they were aware of or voted in that election.[4]





Wright said two government entities do not have the power to place daycare providers in a union just because providers' clients use government aid.[2]





MOTT SAYS ITS NEWS TO US, COME ON KELLY?



The Mackinac Center Legal Foundation is suing the Department of Human Services for improperly allowing a new union to form for home-based daycare providers - and contends Mott Community College played a role.

MCC officials say that's news to them.[2]And according to the center, it all started with an agreement with MCC -- which is not named in the lawsuit.[2]MCC Spokesman Michael Kelly acknowledged the agreement but said MCC's role was just to provide training to childcare providers. He said the college was never called upon to do so and was told it was because of state budget constraints.[2]


Article 7 § 28 of Michigan’s Constitution does allow for interlocal agreements, like the one entered into by the DHS and Mott Community College to create the Michigan Home Based Child Care Council. As a primary matter, these agreements are supposed to require two local governments, not just a state agency and a local government. But even if a state agency and a single local unit of government were proper parties, they could not exercise power that is constitutionally exclusive to the Legislature. The Legislature is the sole entity that can act to expand the number of employees that fall under PERA; under Michigan law, the executive branch cannot take such action unilaterally. Since the Legislature has not enacted a law to cover home-based day care providers, an executive agency cannot enter into a contract whereby these providers can be organized.

It appears that Mott Community College did not serve any role aside from giving the DHS an entity to contract with so as to create an employer that the CCPTM could organize against. The MHBCCC has its office in Lansing, and there is no indication that Mott has any presence in the listed employees at MHBCCC[4]









ITS GOOD PICKING AT THE BERRY PATCH

I’m so happy to see that we’re making progress,” Berry, of the Berry Patch daycare on Court Street, told the Flint Journal Thursday. “It’s not a win but it’s a step in the right direction — finally.”[1]



MACKINAC CENTER WINS ONE

The Midland-based Mackinac Center for Public Policy sued on behalf of the women, who say the union is illegal under Michigan law because the child-care providers are independent business owners, not public employees.[1]DHS allowed the union, Child Care Providers Together, to form without getting the state legislature's approval - and that the department is deducting union dues from the subsidies it gives those day care providers.[2]



WE ARE INDEPENDENT SMALL BUSINESS PEOPLE AND THEY TOOK OUT MONEY

“I’m independently owned and operated,” Berry said. “They’ve taken our money with no explanation. It’s not doing anything to help low income families and their children and it’s not helping us.”[1]

A LITTLE HELP WAS GIVEN



She said the only obvious benefit she has received from the union so far was payment for an eight-hour class on bloodborne pathogens.[1]



UAW AND AFL

The union is a partnership between the United Auto Workers and the American Federation of State, County and Municipal Employees and was created in 2006 with help from Gov. Jennifer Granholm’s administration.[1]

THE STATE JUST TOOK IT OUT OF THEIR CHECKS

According to the center, the Department of Human Services improperly turned home-based daycares into union members by withholding “union dues” from child care subsidy checks sent to them on behalf of low-income parents who qualify for government assistance. [1]

MOTT IN THE GAME DODGES A BULLET

The firm said the union formed after a 2006 agreement between DHS and Mott Community College— which is not named in the lawsuit — that created a quasi-public entity Michigan Home Based Child Care Council. [1]

JUST WHO IS MICHIGAN HOME BASED CHILD CARE COUNCIL, A SHELL?



The firm has said that the council is a "shell corporation" that acts as the employer of the state's home-based daycare providers.[1]

UNION SNATCHES THE MONEY WHERE DOES IT GO?



The union gets 1.15 percent of the millions in state subsidies paid to providers who watch kids from low-income families.[1]

3 JUDGE PANEL TRIED TO DO THE RIGHT THING THE SUPREME COURT SAID WHY/

The Mackinac Center had asked the appeals court to order the state to stop deducting union dues. A three-judge panel — Patrick Meter, Donald Owens and Stephen Bordello — denied the request, but the Supreme Court wants to know why.[1]The childcare union offers home-based providers representation from the UAW and AFSCME to offer collective bargaining for better wages, billable hours and low cost or free training in areas such as first aid and CPR.[2]



The unionization is also being challenged in federal court in a proposed class-action lawsuit filed by the National Right to Work Legal Defense Foundation. In July, a federal judge refused to dismiss the case, which is now in the early stages of litigation. [5]







[1]

http://www.mlive.com/news/flint/index.ssf/2010/09/supreme_court_orders_lower_cou.html




[2]

http://www.mlive.com/news/flint/index.ssf/2009/09/mackinac_center_lawsuit_says_d.html


[3]

State Court of Appeals case number 294087 Was Plaintiff Sherry loar and Dawn Ives against The Michigan Department of Human Services

[4]

http://www.mackinac.org/10992


[5]

http://www.mackinac.org/13562

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BABY neeeds a Union!

BABY neeeds a Union!,
originally uploaded by terrybankert.

It seems the justices sent the case back to the state appeals court, which had ruled against three women —including Flint Township home-care provider Michelle Berry— with a six-word sentence last year. It should be noted that there was a ...proper election where these workers in their good judgment joined the union.

Lets hope the Court Of Appeals makes short work of their remand.

Terry Bankert
www.attorneybankert.comSee More

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City Of Flint inflicted with "Recall Fever" or just democracy?

DSCN0060,
originally uploaded by terrybankert.

ROUGH NOTES
I interviewed Attorney Lubkin at 10;50 pm  09/14/10.




The judge said to the litigants. " Did you run a sample I gave you instruction to get some one to draw a sample and get to work on it. Lubkin stated  the citizens committee had hired from Wayne State University Dr, Shinki  a PHD. His job was to select a universe of nhs coded signatures that were rejected by the clerks. NHS were signatures that did not match the signature on file in the clerks office. Dr. Shinki drew sample  of 736 in sample. To th irritation of the judge the clerks came into court and said the had a need for larger sample. They brought an expert to say so. This expert was a friend of theirs named Gulliand. The Judge asked the clerks how large of a sample did you run the clerks said none.  The judge said the citizens sample of 20 was better that none.Inez Brown sat in the stand. She said she used the  8 codes in the state brochure, she testified, ..sec allowed the entry of new code verbally with no record.  Lupkin said he was faced with  clerk testimony where the statndards can't determined, he said all the invented codes were rouge codes and stealth codes because no one new their meaning. etc... Lupkin then  reviewed codes and problems ...ditto marks and numbers were confused, ...there was no constancy in how the clerks did their job... Mike Carr was to appear he showed up in the back of the room,  and at 2 pm Carr left the court ..  Gilbreath had testified  he has a taped a conversation with carr saying  the recall will never happen,  it was tape recorded and was given to attorney general, Carr never responded to the challenges of Mike Gilbreath,  The citizens put on the stand two people that  actually signed  the petitions and their signature was rejected.3 elements in dispute [1]3300 struck improperly [2]536 in  sample universe only 510 needed, [3]plus duplicate signatures, for 30 years she had always allowed the first of as duplicate but was ordered by Carr to not do that this year. court took under advisement the duplicates, the judge is reviewing the codes, or if he accepts the sampling that puts the effort over the top...it can be temporary or permanent is up to the judge.. he was annoyed Pete Bade never spoke up...Bade even missed at hearing ...Bade spoke up and the end and the judge said "you talk" to Bade, judge says at end defendant Carr delayed a lot ,

The clerks misled the judge sazying the ballot deadline was Friday earlier and to day saying it was Tuesday.

Carr never took the stand and let the searing comments against him the day prior...

 Clerks 5 attorneys on their side

Hodge of Miller  Canfield said he  had a high school reunion and could not participate over weekend
Judge ask if the firm of Miller Canfield and Paddock was a sole proprietorship,


Was this petition check rigged…we hope not…if anything we hope it was only negligence.. If the judge rules in favor of the recall circulators… rhre must be accountability.



The lack of standards has to be devastating…


PRIOR ARTICLE
As we watch the events unfold in Detroit tomorrow in the court room of Federal Judge Tarnow Keep in mind it’s the people work being done.

The Clerks representing the neutral competence required in the administration of our elections and legal challenges to its results through the citizens right to recall are in one corner.

The Citizens represent the importance of the individual voter. are in the other corner.

 Here a group of regular citizens not seeking the office only representing those  dissatisfied with an election office holder  in a flagrant act of democracy signed  their name to a petition.

The citizens are not to be measured by the volunteer organizers, some would call a disorganized rag tagged lot.  The Citizens must be measure by the thousands of people who signed these petitions. Some one has to step forward and do it to create the language, print, organize and circulate petitions. Possibly it is logical that the most angry of us not the most skilled will wrap themselves in this robe of democracy. The test is the quality of the signatures not the political characteristics of the organizers. Citizens signed these petitions and they demand in this democracy that their voice be heard.


DISCLAIMER you can skip this part: This is a blog, I have an opinion, a position and a reputation I place on the line. I am personally against recall initiatives meaning I have never signed a recall petition or voted to recall an incumbent I plan to continue this position. I am personally for the application of neutral competence and transparency in the conduct of election officials . These official are the gatekeepers of democracy. To me it is more important for all valid signatures to be used to tally whether a magic number is reached to force the vote. This Clerk accountability is more important  than the question of the recall itself. When the validity of a signature is in question it is for the court to decide. Finally it is rough duty to protect the rights of all of us by representing the recall committee. F. Anthony Lubkin the Citizens attorney has earned my respect for his efforts. I will not second guess the court.END DISCLAIMER

The citizens committee  is , from the court case caption DAVID DAVENPORT, author of Recall Language, and Volunteer for COMMITTEE TO RECALL DAYNE WALLING, and DAN PARKS, in his capacity as Committee Chairman CRAIG SMITH, in his capacity as Committee Treasurer. ALEX HARRIS. in his capacity as its Committee Vice-Chairman, will argue for and declare victory tomorrow in federal court. Their position with the sample directed to be take by the court they have  enough valid signatures.

The clerks MICHAEL CARR, Genesee County Clerk and INEZ BROWN, Flint City Clerk will argue they dod not. The Attorney for the Citizens is F. Anthony Lubkin. The attorney for the clerks are Clint City Attorney Peter Bade and other counsel from two large reputable firms one being Miller Canfield .


IN THE CONTROVERSY SURROUNDNING THE PETITION SIGNATURE REJECTION SEVERAL CATEGORIES OF REJECTION ARE BEING CHALLENGED.

1. Signature that the clerks say do not match the signature on the ballot cards NHS.

2. Duplicate signature where the clerks rejected both not keeping the first and rejecting the rest.

3. Claims of illegibility

4. And more

400 beyond the nhs category will be in heated debate tomorrow.


CITIZENS RECALL COMMITTEE TO ARGUE THEY HAVE ENOUGH PROVEN CONCLUSIVELY TO BE WRONGLY REJECTED BY THE CLERKS TO HAVE THE RECALL PLACED ON THE NOVEMBER BALLOT.

When the clerks directed that the petition signature to place a recall election on the Flint Office of the Mayor fell short the number short was 520. Attorney Lubkin stated that last week the Judge moved several from the uncounted Colum to the counted Colum . The new shortage number last week was lowered to 495.


The Judged order the parties to cooperate  and find a statistician to  cause a random sampling and survey of the pool of 536 NHS signatures. It is contemptuous how the clerks and their attorney have thwarted the efforts to comply with the judges directive. The Citizens hired a Wayne State Professor Shinki to pull a sample which he did. He will testify Tuesday that this sample has a 95% reliability.

The argument will be that as directed by the court of the NHS pool of 536 a random sample of 20 was picked. When interviewed over the weekend 19 people of the 20 in the sample said they signed the petition. Implicitly they showed the clerks made a mistake. These people signed affidavits and most if not all have agreed to have their testimony video taped.

THEY WILL ARGUE THAT THE  EVIDENCE WILL CONCLUSIVELY GIVE THE JUDGE A BASIS TO ORDER A PLELIMINARY INJUNCTION.


A preliminary injunction will allow the Recall of Flint Mayor Dayne Walling question to be printed on the ballot. This would be followed by a trial or formal hearing where evidence is submitted for a final decision. If the Citizens then failed the Judge could order the results of the election to be ignored.


THE RANDOM SAMPLING OF THE NHS SIGNATURES FOUND THAT OF THE POOL OF 536 95% [19/20] OR 509 SAID THE SIGNATURES ARE THEIRS, VALID AND SHOULD BE COUNTED.

If the judge allows the sample to be entered as evidence and found to be accurate the threshold has been met and the recall question should be placed on Ballot . The clerks argue that the real deadline for placing the question on the November ballot is this week.


If a preliminary injunction is granted it will only cause the printing of the ballot there will still be a trial.


If the preliminary injunction is not granted it will only mean that the ballots will not be printed for the November election. There will still be a trial and the question to recall Flint Mayor Dayne Walling could be placed on the ballot in February.


IN ADDITION TO THE NHS CODED SIGNATURES THERE ARE 400 ADITIONAL SIGNATURES NOT CODED NHS THAT ARE HOTLY CONTESTED.

At 9 pm 9/13/2010 I talked with Attorney F. Anthony Lubkin counsel for the Committee to recall Dayne Walling.


Walling is the current Mayor of Flint Michigan. We talked about the hearing tomorrow  in the court room of judge. Judge Arthur J. Tarnow United States District Court
for the Eastern District of Michigan, Theodore Levin U.S. Courthouse,,231 W. Lafayette Blvd., Room 124,Detroit, MI 48226

This hearing was caused when the Recall Committees appealed the county clerk's office ruling that the recall would not go on the November ballot because of insignificant valid signatures.


WHAT WILL HAPPEN PROCEDURALLY TUESDAY

Attorney Lubkin stated that "the clerks and their attorney have done everything they could to thwart the directive of Judge Tarnow. “They ignored us and treated us like crap.  The Citizens went door to door over the weekend the clerks attorneys would not cooperate. On Monday there was a meeting in the Flint City Clerks office set for 8:30 they did not arrive until 10 a.m.. The clerks attorneys participated in no meaningful way…they refused to do the sample they did not do anything they were supposed to do. The Citizens have been proactive to get this job done and the clerks have been obstructionist Lubkin implied. They have been stalling. At the very least enough has been demonstrated that the preliminary injunction should be ordered, then a full evidentiary hearing held. This glives the judge time and he can order the election to be disregarded if the citizens are not victorious"

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Flint Recall Attorney F.Anthony Lubkin talks about 09/10/10 Federal hearing.

DSCN3096,
originally uploaded by terrybankert.

At 7:30 I talked with Attorney F. Anthony Lubkin counsel for the Committee to recall Dayne Walling. Walling is the current Mayor of Flint Michigan about the hearing in U.S. Federal District Court in Detroit today. This hearing was caused when the Recall Committees appealed the county clerk's office ruling that the recall would not go on the November ballot because of insignificant valid signatures.


Lubkin stated that Genesee County Clerk Michael Carr and Flint City Clerk Inez Brown were in the building available to the court but not in the court room.

A committee volunteer Michael Gilbreath testified today.

The Federal Judge ordered that the recall Committee represented by Lubkin between now and Tuesday at 8;30 be allowed to pull a random sample of about 500 signatures from those that were rejected for forgery [ where the clerks said the signatures did not match]. The Judge directed that the committee retain the services of a statistician. Lubkin has indicated that a Wayne University Professor has been recruited and will pull the random sample.

Implicit in this arrangement is the cooperation of counsel on both sides and given the resistance demonstrated to date the co-operation of other counsel with Lubkin is hoped for. Lubkin with the persistence of process server Patrick Clawson hope to motivate their involvement.

The Judge has allowed several additional signatures to be tallied lowering to 510 the number of signatures short of placing the question of recalling Flint Mayor Dayne Walling on the ballot.


Lubkin will wait for the statistician to draw the sample before projecting an exact number for the sample size and what the needed number of confirmed signatures will be. His guess is that they will need 15 people whose signature were rejected because the clerks thought the signature on the registration card did not match the signature on the petition.

The judge ordered County Clerk Michael Carr and City Clerk Inez Brown to return Tuesday at 8:30 am.

Judge declared he is using a reasonableness standard. His intent is to allow in all signatures that are reasonable.

This link

http://goodmorningflint.blogspot.com/2010/09/flint-recall-attorney-fanthony-lubkin.html

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F. Anthony Lubkin, Canfield delivers brief at 10 pm Lubkin finishes this response by 3 am and takes to court.

DSCN3096,
originally uploaded by terrybankert.

Defendants’ briefs are riddled with gaps, in coverage of subject matter,

in the logic of their conclusions as to the limited areas that they do address, and

as a result, in their overall credibility. Nothing in those briefs, nor in any argument

genuinely arising from them, should give this Court any reason to withhold the

relief of a preliminary injunction as requested by Plaintiffs herein.


UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN





DAVID DAVENPORT, author of Recall Language, and Volunteer for



COMMITTEE TO RECALL DAYNE WALLING, and

DAN PARKS, in his capacity as Committee Chairman

CRAIG SMITH, in his capacity as Committee Treasurer.

ALEX HARRIS. in his capacity as its Committee Vice-Chairman,



Plaintiffs

Case No.:

vs.

Hon.:

COUNTY OF GENESEE,

CITY OF FLINT, a Michigan Municipal Corporation

MICHAEL CARR, Genesee County Clerk and

INEZ BROWN, Flint City Clerk



Defendants



F. Anthony Lubkin (P32740) Plunkett & Cooney

Attorney for Plaintiff Committee Attorney for Defendants Carr

Recall Dayne Walling and its Officers and County of Genesee

4844 Apache Path 111 E. Court Street

Owosso, MI 48867 Flint, MI 48502

(248) 496 5222 (810) 235 5100



Miller Canfield Peter Bade (P47546)

Attorneys for Inez Brown Attorney for City of Flint

One Michigan Avenue, Suite 900 1101 S. Saginaw, Third Floor

Lansing, MI 48933-1609 Flint, MI 48502

(517) 485 7020 (810) 766-7146







REPLY BRIEF OF PLAINTIFFS

AS TO MOTION FOR PRELIMINARY INJUNCTION

















STATEMENT OF FACTS



The Statement of Facts from the original Memorandum of Law in support of the



Emergency Motion for Preliminary Injunction, citing the seventeen (17) ways in which



Defendants violated due process and statutes, is incorporated herein by reference as if



repeated herein in its entirety. In addition, Plaintiffs note that Defendants, consistent with



their pattern of marginally civil conduct of their defense herein, delayed responding to



either of Plaintiffs’ Briefs/Memoranda of Law until an outrageously late hour, filing their



responsive briefs in the night hours of September 8, 2010, less than sixteen hours before



the scheduled hearing for the morning of September 9, 2010. In those responsive briefs,



there were citations which were inapposite, and arguments which either missed the mark



or which were grossly incomplete in failing to address all of the issues at bar. This brief



is provided to simply bring this Court’s attention to the deficiencies of Defendants’



presentation of law, with respect to (1) incompleteness of responses, in failing to even



address in anything approaching a comprehensive or orderly fashion, all of the points



raised in the original and supplemental brief of Plaintiff and (2) inapposite nature of



responses, in making arguments which are either flawed, or based upon completely



unwarranted leaps of logic, which resulted in Defendants taking positions which are



in fact inimical to their own arguments.























CONTROLLING AUTHORITIES



Plaintiffs incorporate by reference the Index of Authorities set forth in their



Supplemental Memorandum of Law dated September 4, 2010, as well as the



Controlling Authorities cited in the Responsive Briefs of Defendants Carr and



Genesee County, and that of Inez Brown, as if each is repeated herein in its entirety.















































































ARGUMENT



I. Incomplete Arguments by Defendants; Failing to Address Most Key Issues



Defendants acknowledge Plaintiffs’ argument citing seventeen ways in which



Defendant Clerks violated due process and/or statutes, but in their responses, they only



address a mere handful of these flashpoints (Defendant only addressed violations set forth



in Paragraphs #3, #6, #7, and #14 of the original Statement of Facts). Specifically,



Defendants completely ignore the following acts committed in violation of due process:



#1. Pre-judging the outcome of the recall election, abrogating outcome-neutral role



#2. Announcing outcome pre-judgment publicly, compounding derogation of neutrality



#4 Striking signatures without objective standards, abridging substantive due process



#5 Striking signatures without cognizable procedures, abridging procedural due process



#8 Striking signatures based on unfounded findings of forgery, by untrained operatives



#9 Making purportedly complete rounds of review, only to follow with additional rounds



#10 Giving direction to another Clerk’s office, tainting independence of the other Clerk



#11 Giving direction to the other clerk which tilted net toward one side (disqualifying)



#12. Accepting direction from another Clerk, tainting independence of servient Clerk;



#13 Accepting direction from other clerk which tilted toward one side (disqualifying)



#15 Publicly ridiculing as “unheard-of” (as if to nullify) 2007 amendment on challenges



#16 Announcing artificially (non-state-mandated) close deadlines to exclude from ballot



#17 Engaging in violent resistance to process server; failing to address theft of signatures



Each of the foregoing acts might have raised serious due process concerns by itself, and



taken in combination all the more so. Still, Defendants only chose to address the others.



Defendants first urge that Plaintiffs are “only” criticizing the “signature validation



process itself”, as if this somehow differs from criticizing how that process was applied



by these Clerks. The fact is that there is no significance in the distinction. The process as



applied by these Defendants – involving all of the flaws listed above, and the few which



they have seen fit to address – is indeed fatally flawed. If the election law is construed to



require certain protocols, then these must be followed by all county clerks, and any



deviation from those standards would violate those standards and hence, due process.



If, on the other hand, the law allows such wide latitude for local Clerks’ manipulation,



then the law either on its face, or as applied by these Clerks, would be unconstitutional.



Compare the tight regulations in Lemons v Bradbury, 538 F3d 1098 (9th Cir, 2008),



where due process was found to exist. That case showcased not one but four (4) major



procedural and training safeguards against due process infringement which are wholly



absent here: (1) public involvement in signature review process; (2) extensive training



of Clerk operatives in handwriting analysis; (3) multi-tiered signature rejection processes



in which supervisors reviewed any initial decision to strike a signature and (4) warnings



on petitions cautioning signers to try to match their voter registration card signatures.



Though Defendants claim Plaintiffs cite no authority for the proposition that there is a



right to public involvement in the signature review process, the Bradbury case makes



clear that safeguards such as public involvement are favored by reviewing courts,



especially combinations of safeguards, Thus, even though that particular safeguard may



not be mandatory to avoid due process concerns, some safeguards have to be present,



Bradbury makes clear there are two ends to the due process spectrum, the favored end



where Clerks in that case stood tall, and the dishonorable end where ours duck and cringe



II. Defendants’ Inapposite/Misleading Arguments as to Remaining Issues on Merits



Defendants claim that Plaintiffs cite no authority for mandating specific state codes.



Plaintiffs do not make that argument; instead, Plaintiffs only note that if codes are to be



the standards set by state election officials, either by expressly preferred practices or by



promulgated rules, these codes should be consistently applied by all county Clerks. If no



such codes are binding on any Clerk, then their use by some and not others becomes



arbitrary and whimsical, raising equal protection as well as due process concerns.



Defendants claim that they advised Plaintiffs what “NHS” meant, that Plaintiffs



acknowledged knowing what it stood for, and that as a result, Plaintiffs had been duly



“advised” why signatures bearing that code were excluded. Defendants also made much



of their argument that Plaintiffs supposedly had done nothing to show that the code was



ever wrongly applied by the Clerks. But these arguments are both false and empty.



Plaintiffs have proven that the “NHS” code was arbitrarily and wrongly applied, by



having obtained Affidavits from numerous voters whose signatures had been marked up



with this contrived “rogue code” by Defendant Clerks, but who nonetheless affirmed



the signatures so marked as having in fact truly been their own. Indeed, using a strictly



random sample of signatures marked with the wrongful “NHS” code, fully100 percent



of those voters whom Plaintiffs could locate to query as to signature genuineness did in



fact affirm their having signed. See Affidavits of Dan Parks, Committee Chairman and



John Carpenter, Volunteer, confirming that EVERY voter whose signature was marked



“NHS”, and who was thereafter reached to affirm their signature, did so and swore to it.



Plaintiffs have also proven that another rogue code “CD” (meaning “cannot



determine”), arbitrarily applied by Defendant Clerks to purportedly signify illegibility,



was also wrongfully applied to dozens, if not hundreds of otherwise valid signatures.



See Affidavits of Chairman Dan Parks, Volunteers John Carpenter and Mike Killbreath.



also making clear that Defendant Clerks’ machinations of rejecting signatures using their



contrived “rogue code” known as “CD” had also caused widespread wrongful exclusions.



Defendants go on to address Violation #3, the referral of complaints to prosecutors.



Defendant Carr claims that he merely referred an isolated act of wrongful certification of



a petition sheet (a cognizable misdemeanor) to authorities for investigation. This is a



disingenuous and ridiculously partial description of what Defendant referred, and how he



did it. Defendant Carr didn’t confine himself either to referring specific, technical acts



violating petition laws, but instead openly admitted to making referrals of “complaints”



about what petition circulators were saying (not merely signing or certifying) and what



they were saying generally (not just specifically in isolated instances). Worse yet, Carr



made these gratuitous “referrals” for prosecution conspicuously and with much fanfare



in local print media, so that his words would be a powerful, amplified tool to intimidate



petition circulators during the height of the signature gathering process. This was an



act of widespread voter intimidation and election interference funneled through the media



and contrasts wildly with Carr’s prim portrayal of himself as having discreetly referred



a singular, technical act of wrongful certification.



Addressing Violation #14, Defendant Carr than states that he did not err in accepting



challenges because there is “no requirement that the challenge be directly made by the



official, only that it be made by the official.” In language that echoes former President



Clinton’s infamous parsing of the word “is” (wherein he said an answer depends on what



the meaning of ‘is’ is”), Defendants have raised a classic distinction without a difference.



The statute makes clear that its language makes no allowance for actions by proxy.



Defendants claim that the Mayor’s campaign committee could act on his “behalf”.



but that committee, and its “record keeper” (whose statutory job description is limited



to finance issues) has no role as signer of non-finance documents. The same concerns



regarding genuineness of signatures and the signer’s intention (in this case, that of the



officer facing recall) which underlie laws about petition signatures underlie the challenge



law amendment whose clear language Defendants hope to avoid, and ask this Court to



nullify by fiat. In its wisdom, the Legislature saw fit to require the subject officer to



personally vouch for any claimed challenges, so as to ensure that no one with an agenda



separate from, or at cross-purposes with that official (or unauthorized by that official)



were to interfere in the process. Statutory recall procedures invariably involve only three



parties: the sponsor (here, Plaintiff), the officer subject to recall (here, the Mayor) and



filing officials (here, the local Clerks). No fourth party is included in any recall procedure



Defendants make much of the 2004 case of DeLeeuw v State Board of Canvassers,



263 Mich App 497 (2004), in which Republicans signed petitions to nominate Ralph



Nader for U.S. President, over strenuous objections of Democrats, who claimed that such



action by proxy violated statutory language referencing prospective new candidates as



“a person”. The argument advanced in that case was that only a particular “person”, the



candidate himself could sign his own nominating petition, but the argument was rejected



and proxy action by members of another party was permitted to go forward.



Whether by oversight, careless analysis or outright deception, Defendants’ reliance on



DeLeeuw is horribly misplaced. That case is the exact opposite of the present one, and



critical factors which compelled the Court to rule as it did in that case are absent here.



Indeed, applying the standards of Deleeuw to the present case mandate the opposite result



In DeLeeuw, proposed action by proxy stood to ADD options to the ballot for voters:



“Although the challenge to the petition argued that allowing third persons to file petitions ‘opens up unlimited opportunity for mischief and manipulation, all the examples cited involve an attempt to keep a candidate off the ballot. In this case, the object was to get Nader on the ballot, which vindicates the voting rights of the voters who would prefer to vote for Nader. The expression of political preference is the bedrock of self governance’ (citation omitted).” There is a fundamental difference between actions to get a candidate’s name on the ballot and actions to prevent it from appearing. Associating for the purpose of getting a candidate’s name or legislative proposal on the ballot is protected activity under the First Amendment; conspiring for the purpose of having it removed is not…” Id.



Contrast the present case, where honoring the official’s action (a challenge) by proxy



will have the opposite, disfavored effect of narrowing the options available to city voters



who may prefer to address recall issues sooner rather than later. This applies even more



forcefully when one considers the plight of city voters looking ahead to bleak times of



badly compromised public (and hence, personal) safety, record levels of assault and arson



and disastrous budget woes, all looming in the upcoming winter of their discontent. For



this Court to indulge the Clerks’ cynical ploy to overlook statutory flaws of challenges



would inevitably lead to the canceling of an election, narrowing electoral choices for all.



A second major distinction between the present case and DeLeeuw was that the ballot



issue being affected (nomination for US President) was a federal office, whereas the issue



at hand in the present case is at the other end of the geographical spectrum, a uniquely



local (city) issue. The Court in DeLeeuw focused on the impact on a federal candidacy:



“A requirement that any candidate for public office file his petition in person would be unconstitutional as a severe

burden on a qualified individual’s right to seek public office, at least with respect to federal positions, which burden

could not be justified by a compelling state interest” Id.



The prospect of forcing a candidate for US President to sign a nominating petition in each



of 50 states in person would indeed have created extreme burdens on such candidates,



and would surely discourage candidates from coming forward to broaden voter options.



Contrast the present case, where a mere one-time requirement for an isolated office-



holder (subject of a recall), already sitting in office, to simply acknowledge and sign for



any challenges to his recall, would add no comparable burden to his routine. More



importantly, enforcing the requirement of signing personally for challenges would



normally raise no barrier to the broadening of electoral options (though in this case,



not doing so would in fact foreclose all options of having voters visit recall issues).



Curiously, DeLeeuw contains language which is hauntingly apropos to this case:



“The myriad laws passed to protect the sanctity of petitions and the public measures that incorporate the petition into

the decision making process provides ample support for the proposition that petition signers possess a legally

protected interest in having their signatures validated, invalidated, empowered or disregarded according to

established law – not the political whimsy of a rogue signature counter, clerk or delivery man “.Petitions are a vital

means of gathering the collective assent of the people, and if the law will not protect a petition signer’s interest in a

proper use of the signature, then those opposed to the petition may quickly find themselves without an adversary.” Id.



Defendants wind up their comments on the Mayor’s challenges by claiming that



allowing them was simply “harmless error” because almost all signatures challenged



were “duplicates”. This argument is false, because the signatures challenged went



beyond “duplicates”.; but more to the point, there would never have been any exclusion



of these signatures had the flawed and improper challenges been properly rejected.



It is worth noting that Defendants never cited any authority for their act of striking BOTH



signatures of a confirmed pair of duplicates, but even if they had, since the issue arose



solely as a result of defective challenges, it was allowance of these which became critical.



In short, wrongful indulgence of flawed challenges was hardly “harmless” to Plaintiffs



III. Deceptions in Defendants’ Arguments About Harm to Parties and Public



Defendants’ analysis of the prospective merits of case (Parts I and II, above) is



incomplete and off-point, but their arguments as to prospective harm to the parties



are far worse. As to irreparable harm which could result if the injunction is denied,



Defendants raise just two claims: (1) that issues of the November 3 ballot are moot



and (2) that deferral of the election from November to February would be harmless.



Both of Defendants’ claims as to this issue reek with falsity. The first claim is a



complete contrivance. Defendant Carr alone has announced and since adhered to his



hand-picked, artificial “deadline” of September 3 to place the subject recall on the



November ballot. This deadline, announced just after Plaintiffs filed their Emergency



Motion for Injunction in state Court, was interposed by Defendant strictly to foil this



litigation. Defendant Carr acknowledged that his self-styled deadline of September 3



was subject to change if a court were to so order. In point of fact, the State is the only



entity untouched by these proceedings, and its actual deadline for ballot inclusion is



September 17, which though still very close (next week) remains manageably in the



future, so that there remains prospect of printing November ballots including this recall.



The matter is simply not moot, and Defendants should be upbraided for this false claim.



Second, there is nothing about a deferred February recall election which would be



comparable to one in November. Voters who signed for recall in June and July were



demanding a prompt consideration of their issues; a delay of four months unto the



autumn was called for, but a delay twice that long, solely to accommodate brazen anti-



recall manipulation by local political operatives, would cause irreparable harm to the



principles of the rule of law, and deference to the expressed will of the voters. Meanwhile



Flint continues to be showcased as the city with the highest assault and arson rates in the



nation, since the Mayor’s policies reducing public safety staffers took effect. Murders



are running several times faster than in the years before the Mayor’s public safety



policies were implemented. Based on these considerations alone, a prospect of irreparable



harm to voters and citizens on the street appears to augment harm to the electoral process.



Defendants next claim there will be harm to others, citing the cost of printing ballots



and the costs to the Mayor in having to defend against the recall. But nothing in



Defendants’ facile arguments shows how there is any greater cost for printing or



defending against a recall which is held sooner (November) rather than later (February).



Either way, ballots will have to be printed, and the Mayor will need to raise funds.



Finally, in addressing the interest of the public, Defendants make the same hollow,



wooden arguments cited above with respect to “harm to others”, namely that there will



be a cost of printing ballots and for the Mayor to defend against recall. Again, no clue is



offered as to why the costs of each of these factors would be any greater if the election



were held promptly versus having it be held several months later. Defendants add one



final twist to their claim as to public interest, lamenting that the Mayor would face



serious distraction from City issues once a recall is certified for election. Still, Defendants



again offered no clue as to why these levels (or, for that matter costs) of purported



Mayoral distraction would be any greater or more costly if they were to be caused by



an election in November rather than in February.



In short, Defendants have offered no honest, coherent argument supporting their



side as to ANY (let alone all) of the four factors examined in deciding on whether to



issue a preliminary injunction.

































CONCLUSION



Defendants’ briefs are riddled with gaps, in coverage of subject matter,



in the logic of their conclusions as to the limited areas that they do address, and



as a result, in their overall credibility. Nothing in those briefs, nor in any argument



genuinely arising from them, should give this Court any reason to withhold the



relief of a preliminary injunction as requested by Plaintiffs herein.





Respectfully submitted,



Date: September 8, 2010



________________________

F. Anthony Lubkin (P32740)

Attorney for Plaintiffs

4844 Apache Path

Owosso, MI 48867

(248) 496 5222

Sphere: Related Content

Attorney F.Anthony Lubkin, his brief and supplemental brief.

Attorney F.Anthony Lubkin,
originally uploaded by terrybankert.

The issue of petition signature rejection concerning the proposed recall of Flint Mayor Dayne Walling will be in Detroit Federal Court 09/09/10 at 10 a.m.
UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN





DAVID DAVENPORT, author of Recall Language, and Volunteer for



COMMITTEE TO RECALL DAYNE WALLING, and

DAN PARKS, in his capacity as Committee Chairman

CRAIG SMITH, in his capacity as Committee Treasurer.

ALEX HARRIS. in his capacity as its Committee Vice-Chairman,



Plaintiffs

Case No.: 2:10-13503-SFC

vs.

Hon.: Sean F. Cox

COUNTY OF GENESEE,

CITY OF FLINT, a Michigan Municipal Corporation

MICHAEL CARR, Genesee County Clerk and

INEZ BROWN, Flint City Clerk



Defendants



F. Anthony Lubkin (P32740) Plunkett & Cooney

Attorney for Plaintiff Committee Attorney for Defendants Carr

Recall Dayne Walling and its Officers and County of Genesee

4844 Apache Path 111 E. Court Street

Owosso, MI 48867 Flint, MI 48502

(248) 496 5222 (810) 235 5100








MEMORANDUM OF LAW IN SUPPORT

OF EMERGENCY MOTION FOR

PRELIMINARY INJUNCTION





























TABLE OF CONTENTS



Table of Contents……………………………………………………………………i



Index of Authorities………………………………………………………………….ii



STATEMENT OF FACTS…………………………………………………………...1



ARGUMENT



I. Due Process Claims Alone Suffice to Warrant Preliminary Injunction………...5



II. Statutory Irregularities Augment the Bases for Injunction……………………...7



III. Greater Prejudice to Parties and Public if Injunction Denied…………………... 10



CONCLUSION………… …………………………………………………………..11































































INDEX OF AUTHORITIES





Bogaert v Land, 572 F. Supp2d 883 (W.D.Mich, 2008), appeal dismissed,

543 F3d 862 (6th Cir., 2008)………………………………………………….5, 6



Karwick v Grajewski, 253 Mich 110 (1931)……………………………………….6



MCL 168.961a(2)…………………………………………………………………..3, 8









































































STATEMENT OF FACTS



Plaintiffs raised their multi-pronged Constitutional challenge to Defendant Clerks’



various acts in violation of due process, including among others:



(1) pre-judging the outcome of the election, in derogation of their statutory mandate to



serve as outcome-neutral arbiters of local elections;



(2) making public declarations regarding their expectations for the outcome,



compounding their derogation of outcome-neutral role;



(3) publicly announcing “referrals” of “complaints” regarding petition circulators’ acts



(which had been reported to Defendant Clerks and in media but not to police) for



potential prosecution, even though Defendant Clerk admittedly lacks authority to so



refer cases for prosecution (as would a police agency), and further ordering Clerks’



office staffers to telephone recall organizers to cite such “complaints”, thereby acting



in a manner calculated to intimidate pro-recall volunteers with fear of prosecution



and thus interfere with local elections in violation of ordinance, law and due process;



(4) striking voters’ signatures on petitions in more than 7,100 instances arbitrarily,



without using clear, outcome-neutral, objective criteria for each decision to do so,



thereby erasing the expressed will of almost one half of the voters signing recall



petitions, and abrogating the substantive due process of voters and Plaintiff sponsors;



(5) striking voters’ signatures on petitions in more than 7,100 instances in haste and



secret, without using regular, established procedures which would have afforded



reasonable notice of decisions being made, nor any reasonable opportunity to be



heard as to standards applied, abrogating procedural due process of Plaintiff sponsors



(6) striking voters’ signatures on petitions in thousands of instances by applying



Defendants’ own contrived and/or invented signature disqualification “codes” not



authorized by state elections officials (“rogue codes”), nor by their established



election protocols, all in derogation of law and due process;



(7) using contrived rogue codes to justify striking voter signatures either (a) in defiance



of existing standards under established election law (if such standards in fact exist),



in which case officials’ action violated due process by deviating from those



standards or (b) doing so in the absence of any clear, existing standards for the use of



codes in which case the election law is unconstitutionally vague for lack of such



standards;



(8) striking voters’ signatures in thousands of instances based on unfounded conclusions



of forgery, made by untrained operatives lacking demonstrated credentials to make



even routine handwriting comparisons, let alone those in which circumstances of



variations in factors between samples (such as lapse of time, degrees of stress and/or



exigencies of time to affix signatures, writing surface access or angles, and writing



implement usage, among others) may have distorted factors affecting comparisons,



again resulting in erroneous conclusions made in derogation of due process;



(9) striking voters’ signatures in sequential declarations, each of which is initially



announced as having been a completion of that Clerk’s statutory phase of review,



only to later make additional announcements of further signature exclusions which



could and should have been done at the time of the purportedly “complete” review,



thereby mocking the previous review phase’s previously announced completeness



and proving signature review processes were arbitrary, contravening due process;



(10) in the case of Defendant CARR ordering the City Clerk’s office to use certain rogue



codes as “protocols” to disqualify signatures, rather than allowing the City Clerk’s



office to act independently, all in derogation of state law and due process;



(11) in the case of Defendant CARR, ordering the City Clerk to make decisions and/or



reach conclusions based on the tainted, biased, untrained and/or uninformed opinion



of amateur operatives acting in haste and secret, without monitoring, supervision or



input of voters or Plaintiff recall sponsors, all in derogation of law and due process;



(12) in the case of Defendant BROWN accepting and yielding to any direction of County



Clark CARR, despite knowledge of his public acts abrogating his outcome-neutral



status (declarations pre-judging election outcomes, expressing displeasure and



prejudice towards recall sponsors, entertaining and referring “complaints” and



committing other acts calculated to intimidate petition circulators);



(13) in the case of Defendant BROWN, accepting and yielding to specific direction of



County Clerk CARR in furtherance of the latter’s expressed desire to prevent recall,



and to reach specific conclusions based on the tainted, biased, untrained and/or



uninformed opinion of amateur operatives acting in haste and secret, without



monitoring, supervision or input of voters or Plaintiff recall sponsors, all in



derogation of law and due process;



(14) in the case of Defendant CARR, reflexively and uncritically accepting and



indulging as proper, genuine and duly presented not one, but each of THREE



written “official challenges” purportedly made under MCL 168.961a2



each of which “challenges” were NOT duly made by the “officer whose recall is



being sought” as required by the clear, mandatory language of that statute, which



leaves no room for challenges to be made by unaccountable persons or by proxy,



“challenges” instead were made by self-styled “record keeper” acting for an outside



entity such as a political or campaign finance committee, all in derogation of law;



(15) When confronted by media reports of Plaintiffs’ claim that the Mayor failed to



comply with MCL 168.961a2 requiring challenge specifically by “the officer whose



recall is being sought”, Defendant CARR stood before cameras as if stunned and



wholly unaware of this statute and declared that he had not heard of such a law,



despite the fact that this language had been in effect since a 2007 amendment.



(16) in the case of Defendant CARR, after taking all the above-described actions to



destroy the prospects of one (pro-recall) side in a local election, and then declaring



on August 30 that the November recall election was canceled for want of signatures,



thereafter publicly announcing an imminent deadline (September 3, just four days



hence at the time) for Plaintiffs to take legal action to salvage that November ballot;



(17) Having announced the impending deadline of September 3 to save the November



recall ballot, and having been advised by media reports of lawsuit and Emergency



Motion to save that election, filed August 31 and/or September 1, thereafter willfully



avoiding service of process, first using false pretexts of “absence on vacation”, made



to process server, and then resorting to violent resistance against process server, see



Affidavit of Process Server citing conduct of Defendant(s), filed September 2, 2010





Plaintiffs’ Complaint and Emergency Motion set forth all of the above-mentioned



claims raising issues of due process and abrogation of law, to which there had been no



response as of September 2, 2010, day prior to scheduled hearing on Emergency Motion.







ARGUMENT



I. Due Process Claims Alone Suffice to Warrant Preliminary Injunction



This case is very similar to Bogaert v Land, 572 F. Supp2d 883 (W.D. Mich, 2008),



appeal dismissed 543 F3d 862 (6h Cir, 2008), a case raising Constitutional questions,



also decided under the Recall section of Michigan’s Election Code. In Bogaert, the



Court held that a sponsor of a recall petition who demonstrated some prospect of



success on merits of a claim that certain provisions of the Michigan recall statute



were unconstitutional was entitled to a preliminary injunction ordering a filing official



to restore signatures which that official had stricken from recall petitions. That case



involved claims that by imposing certain restrictions on qualified voters, the election



law operated to violate free speech rights of certain voters. In Bogaert, there was not



even any claim that local officials had misapplied election laws improperly, in any



way comparable to the long litany of official irregularities and wrongdoing (cited



as open allegations compiled in the Statement of Facts, above) such as that at issue



in the present case. Still, based on the mere allegations regarding one Constitutional



claim, and the Court’s observation that the claim showed reasonable prospect of



success on the merits, a preliminary injunction was issued.



The present case is far more extreme, involving the seventeen categories of due



process violation on the part of officials (set forth as allegations in the Statement



of Facts, above) as well as the claim of unconstitutionality of the election code,



as applied by officials herein, noted as one of two alternative claims in Paragraph 7 of



the Statement of Facts, above. The claim of unconstitutionality in the election law



which was deemed sufficient to warrant an injunction in Bogaert is just half of



one category among seventeen compelling claims raised in the present case. In other



words, the present case contains thirty four times as much basis (17 times 2) for



a preliminary injunction as the recall law challenge raised in Bogaert.



Defendants’ actions, involving the exercise of personal discretion in evaluating



and striking voters’ signatures, arbitrarily and in both haste and secret, without



any objective standards, credentials or cognizable procedures for doing so, not only



contravened due process, but also ran afoul of long standing case law mandating that a



local Clerk’s function in reviewing signatures is to be strictly a ministerial one.



Karwick v Grajewski, 253 Mich 110 (1931), A ministerial function is one in which



decisions are based entirely on facts and criteria appearing on the face of petitions



alone, without importing extraneous factors or material into their decisions, Karwick.



In the present case, where a Clerk is mandated to serve as an outcome-neutral arbiter,



without the injection of personal bias and animus towards any side, the conduct



alleged is so egregious that, if proven, may be unmatched in the annals of conduct of



local clerks supposedly presiding over local elections. If even a fraction of these



allegations prove true, then any failure to issue a preliminary injunction would have



simply facilitated such misconduct.

























II. Statutory Irregularities Augment the Bases for Injunction



Due process claims suffice to warrant preliminary injunction, and the proliferation



of over a dozen such claims compounds the bases for such action. But the blatant



statutory lapse by the subject official, and his failure to properly log his “challenges”



makes an injunction absolutely imperative. The official subject to recall in the present



case, Dayne Walling (Mayor of Flint) NEVER made or signed any “challenges” at all.



A person named Brian Bates, calling himself a “record keeper” of an outside organization



called “Friends of Dayne Walling” signed the self-styled “official challenge”. Bates is



record keeper of an outside organization, apparently a candidate committee operating



under local campaign finance laws. But he is NOT the “officer whose recall is being



sought”, whose challenge is required under the clear, mandatory provisions of MCL



168.961a(2), which provides:



“An officer whose recall is being sought may challenge the validity of the registration or

the validity and genuineness of the signature of a circulator or person signing the recall petition...

The officer whose recall is being sought shall have not less than 8 days after the Clerk has

examined the signatures to check signatures on the original registration records.”



The statutory language emphasized above leaves no room for challenges by proxy



organizations or persons, or other shadowy and unaccountable persons or groups



who may claim to be acting for, or in the interests of the “officer whose recall is



being sought”; this provision was inserted by the Legislature in its wisdom for any of a



number of policy reasons, including the public interest in ensuring that challenges are



themselves genuine and signed for by the office holder personally, not by persons not



clearly authorized at the time of the challenge to act for the office holder, and for other



reasons; the Legislature’s use of language is presumed to be deliberate and literal, absent



proofs from legislative history to the contrary.



In the present case, not only is the signature of the person submitting challenges



that of the wrong person, being a would-be surrogate rather than the office holder



himself, but even that flawed and improper signature lacks authentication by any



notary, contravening established protocol to which State officials, if called could



testify, namely that the statewide standard of practice is for the signature of any



person submitting a challenge under MCL 169.961a to have same notarized, again to



uphold policies promoting accountability and integrity, See Paragraph 11, above.



Oddly enough, the signatory to the so-called “official challenges” does not even



pretend to act “on behalf” of Mayor Walling. Instead, the recipient of challenges, Clerk



Carr is invited to by the letter writer (Bates) to contact yet another person (one Mr. Fox)



if Mr. Carr “has any questions” about the challenge. The mysterious Mr. Fox does not



even bother to sign the challenge letter, even though he is described by that letter as the



party who is supposedly acting “on behalf” of Mayor Walling in making challenges.



Thus, the signature of Mr. Fox, who is noted as a person who speaks “on behalf” of the



Mayor is wholly absent, as is the Mayor’s signature, and Bates’ signature is not notarized



From the foregoing fiasco of rogue, proxy and missing signatures, Mr. Carr definitely



should have had plenty of “questions” about the facial legitimacy, and even the



authenticity of the challenges. Yet as quick as he was to condemn the validity of voter



signatures by the thousands, Mr. Carr breezed right over the fatal defects in the three



submitted challenges, accepting each as if brought by a person authorized by law, when



in fact none was in compliance with the statutory mandate of MCL 168.961a2.



The failure of Dayne Walling (the office holder subject to recall herein) to personally



sign and be personally accountable for ANY (let alone all) of the three “challenges”



purportedly submitted to Defendant CARR, and the further failure of any would-be



surrogate to actually have his own (inappropriately substituted) signature notarized upon



which flawed challenges said Defendant CARR reflexively and uncritically acted to



exclude numerous signatures (adopting challenges’ false claims of forgery/duplication)



renders each of the three challenges fatally flawed, as a matter of law, and any exclusion



of Defendant CARR in response to challenges must thus be reversed, as a matter of law.



Any decision to the contrary would be in defiance of plain legislative mandate and any



post facto clarification, excuse or contrivance by the subject official, Mayor Walling that



the person or entity submitting challenges somehow did so on his behalf would still run



afoul of the letter, spirit and purpose of the Michigan Recall law, particularly recent



amendments so carefully crafted by the Legislature to ensure timeliness, accountability



and integrity from officials being subject to recall.



Because this case involves the grievous statutory lapse of the official being recalled,



on top of the Constitutional claim already deemed more than ample by a reviewing Court



Bogaert, supra, to warrant issuance of a preliminary injunction, the present case is far



stronger than any yet published for issuance of an injunction, pending review of issues.



Defendants, already unwilling to provide definitive proofs of alleged signature



forgery (or even credentials to render their conclusions as to same truly credible)



will be even more clearly unable to cite any published case or example of recall



elections in which a Court refused to issue a preliminary injunction under the



circumstances of this case, in which BOTH (a) plausible Constitutional claims have been



advanced by the recall sponsor and (b) clear, mandatory statutory terms requiring specific



action by the subject of recall were abrogated by that official.



III. Greater Prejudice to Parties and Public If Injunction Denied



Defendant CARR’s current position on the subject of signature disqualification,



which is to arbitrarily exclude signatures based on unsubstantiated, subjective decisions



regarding their alleged genuineness by persons without demonstrated credentials,



applying undisclosed standards in haste and secret, and doing so indefinitely, will


cause the above-mentioned deadline for inclusion of this election on the November



ballot to pass, even with the crucial issues of this cause remaining unaddressed. Thus.



absent the emergency intervention of this Court, said election would be thwarted solely as



a result of Defendant’s arbitrary actions and routine scheduling delays in this Court.



Based on the foregoing, it is apparent that irreparable harm will result to Plaintiffs’



efforts and organization, as well as to the public interest in free, fair and timely elections,



if in fact a preliminary injunction does not issue in this cause. In the unlikely event that



all of Plaintiffs’ many statutory and Constitutional claims are somehow deemed



unmeritorious after a preliminary injunction does issue, there would be little or no



prejudice to Defendants, as the preliminary injunction could later be lifted (allowing any



disputed election to thereby later be ordered suspended) without prejudice to parties



herein, voters or the public at large. But if any of Plaintiffs’ claims do in fact prove



meritorious and no preliminary injunction has been issued at this stage of proceedings,



allowing State-mandated deadlines to lapse, then the interests of Plaintiffs, signatory



voters and the public at large will clearly have been gravely prejudiced and irreparably



harmed; as a result, any doubt regarding propriety of preliminary injunction at this stage



of proceedings should clearly be resolved in favor of issuance, if only to preserve the



status quo and options for all parties hereto, the State, and voters as to the subject election



CONCLUSION



Given the confluence of Constitutional and statutory claims under Michigan’s



Recall law, and the precedents for preliminary injunction where far fewer and less



compelling claims have been raised, preliminary injunction is imperative in this case.



Particularly when one takes into account the potential for prejudice if an injunction is



not granted, and the minimal risk if one is granted in error and later lifted, there is truly



no rationale for refusing to issue an injunction pending resolution of issues at bar, as



requested by Plaintiffs herein.


********





SUPPLEMENTAL MEMORANDUM OF LAW

IN SUPPORT OF EMERGENCY MOTION FOR

PRELIMINARY INJUNCTION





























TABLE OF CONTENTS



Table of Contents…………………………………………………………………… i



Index of Authorities………………………………………………………………… ii



SUPPMENTAL STATEMENT OF FACTS………………………………………...1



SUPPLEMENTAL ARGUMENT



I. Due Process Violation Undeniable Based on Lack of Standards & Procedures… 2



II. Clear Statutory Violations Augment Bases for Relief to Plaintiffs….………….. 8



III. Weighing Relevant Factors Compels Issuance of Preliminary Injunction………11

.

CONCLUSION………… ………………………………………………………….14































































INDEX OF AUTHORITIES





Bogaert v Land, 572 F. Supp2d 883 (W.D.Mich, 2008), appeal dismissed,

543 F3d 862 (6th Cir., 2008)…………………………………………………...2,3,10



Citizens for Tax Reform v Deters, 518 F.3d 375 (6th Cir., 2008)…………… .. .…….…. 7



Lemons 26 v Bradbury 538 F3d 1098 (9th Cir., 2008) ……………..……… …..3,4,5,6,7



Northeast Ohio Coalition for Homeless v Blackwell, 467 F3d 999 (6th Cir.,2006).11,12,13



Timmons v Twin Cities Area New Party, 520 US 351, 117 S Ct 1364,

137 Led2d 589 (1997)…………………………………………………………….7



United States Student Association Foundation v Land, F3d (6th Cir, 2008).... 8,9,10



MCL 168.961a(2)………………………………………………………………………..10























































SUPPLEMENTAL STATEMENT OF FACTS



The Statement of Facts set forth in original Memorandum of Law Supporting



Emergency Motion for Preliminary Injunction is incorporated by reference as if



repeated herein in its entirety.















































































SUPPLEMENTAL ARGUMENT



I. Due Process Violation Undeniable Based on Lack of Standards and Procedures



The original Memorandum of Law submitted by Plaintiffs cited Bogaert v Land,



572 F. Supp 3d 883 (W.D. Mich., 2008).appeal dismissed 543 F3d 862 (2008). In



Bogaert, Plaintiff was sponsor of a Petition to recall a state legislator, and officials had



invoked MCL 168.957, declaring that Plaintiff had not obtained the required number of



votes to put the recall election on that November’s election ballot. Plaintiff raised



due process and 1st Amendment Constitutional challenges to certain provisions of the



Michigan Recall statute, which were sufficiently convincing at the time preliminary



injunction was sought to warrant issuance of such an injunction. In Bogaert, the



operation of district residency requirements on the ability of voters to participate in



the election process, and the manner in which these requirements effectively nullified



votes, were the underlying issue that was deemed sufficiently likely to prevail on the



merits at the District Court level to warrant the injunction.



The present case involves an even more profound and extreme set of Constitutional



challenges than had been raised in Bogaert, supra. In this case, Plaintiffs are raising



Constitutional challenges to the manner in which Michigan’s Recall Statute allows



local Clerks (“filing officials”) unfettered discretion to arbitrarily disqualify voters’



signatures, both in the substantive standards applied by those officials and in the



procedural protocols and lack of safeguards under which those standards are applied.



Either the Recall Statute sets clear objective standards for the disqualification of



voter signatures as they appear on petitions (in which case local Clerks are obliged



to adhere strictly to those standards), as well as specific procedures for ensuring the



proper credentials and methods for applying those standards, or the Recall Statute



lacks such clear requirements, rendering it unconstitutional, either as written or as



applied by officials such as Defendants, who have acted without applying such clear



standards, procedures or protocols for ensuring qualification of those making decisions.



The reason why Plaintiffs’ claims herein can be regarded as likely to prevail on the



merits before this Court, becomes clear when one compares the loose and slipshod



practices of Defendant Clerks in this case to the tight, well-regulated protocols in the



contrasting case of Lemons 26 v Bradbury, 08-35209, 538 F3d 1098 (9th Cir., 2008).



In Bradbury, supra, the Court affirmed a District Court’s finding that filing officials’



protocols for reviewing and/or disqualifying signatures did not violate due process.



The Oregon Secretary of State, in reviewing petition signatures for validity on a



referendum, determined that the number of signatures was insufficient to place the



subject referendum on the ballot. State officials were relying on a publication entitled



Directive for Signature Verification, which required county elections officials to



“compare the signature on the petition and the signature on the voter registration to



identify whether the signature is genuine and must be counted”. In response to



officials’ findings, Plaintiff petition sponsor raised some of the same due process



arguments challenging standards and procedures for signature validation that Plaintiffs



are raising in the present case. It is worth noting that even in Bradbury, supra, where



the ultimate decision went against the Plaintiff petition sponsor, preliminary injunction



had been GRANTED (See Part III, below). It is also worth noting that in this case,



unlike Bradbury, additional statutory bases for injunction are present (Part II, below).



In Bradbury, the U.S. Court of Appeals was willing to ultimately deny relief



sought by plaintiff petition sponsors (namely, a right to specific notice of signature



rejection to each affected voter, and a window of time to rehabilitate rejected signatures



with extrinsic proofs, such as voter statements). Denial was based on factual findings



that “county election officials use specific, uniform standards for signature verification”



First, Oregon’s referendum petitions contained a clear warning legend not present on



those in our own state, namely, “(S)ign your full name, as you did when you registered



to vote.” This placed voters on alert that signatures would be compared and scrutinized,



in a way that local petitions in the present case did not. That alone tended to minimize



unnecessarily casual application of signatures onto petitions, and hence tended to



reduce the incidence of non-matching petition signatures later giving rise to disputes.



Second, the Court in Bradbury noted that in that case, “Chief petitioners and



members of the public observe the process and can object to signature verification



decisions.” The Court noted that “the Secretary’s procedures already allow chief



petitioners and…the public …to challenge decisions by county elections officials.”



No similar monitoring safeguard by independent parties or the public, let alone by



the potentially aggrieved parties, namely petition sponsors, exist in the present case.



Third, the Court in Bradbury made clear that the signature rejection process in



that case had been quite sophisticated and multi-tiered, with major secondary



safeguards, including mandatory review of each rejected signature by a supervisory



county official. “All counties provide that higher county elections authorities review



all signatures that are initially rejected,” declared the Court in Bradbury; “(r)ejected



signatures are subject to more than one level of review by county elections officials.”



No protocol even remotely similar exists to protect against arbitrary or unduly



broad or sweeping decisions to disqualify or reject signatures appearing on petitions,



made by unnamed, unaccountable and untrained operatives working both in haste and



in secret for the Defendant Clerks in the present case.



Fourth and most compelling was the Bradbury Court’s factual observation that



the signature verification process has built-in guarantees of fair treatment, in that



credentials of reviewing officials are developed and later certified as being sound.



“The Secretary sponsors signature verification training sessions, and county elections



officials regularly attend these sessions and use the materials provided.” The Court



added that this training process included enhanced expertise for higher level officials,



noting, “During the verification of Referendum 303, all counties subjected initially



rejected signatures to a second level of review.” Contrast the sorry state of affairs in



the present case, where neither Defendant Clerk can honestly cite any serious regimen



of signature verification training having been instilled into all staffers, let alone any



differential level of training for higher officials, not any cognizable enhanced level of



expertise having been inculcated into those higher officials.



Oregon’s procedures were challenged by referendum petition sponsors (who still



gained their requested preliminary injunction, see Part III, below) but who ultimately



lost any permanent relief because of any of 4 factors wholly absent in the case at bar:



(1) petition warning legends cautioning voters to sign with care, curbing mismatches;



(2) active involvement of the public and petition sponsors in signature review process;



(3) multi-tier and specialized secondary review of rejected signatures by supervisors;



(4) comprehensive training in handwriting analysis expertise for reviewing officials.



By contrast to the thoughtful and progressive procedures etched in stone by Oregon



laws governing signature disqualification reviewed in Bradbury, the vague, untraceable



standards and seat-of-the-pants decision-making procedures applied in haste and secret



by operatives for Defendant Clerks in the case at bar are sorely lacking. Key safeguards



to ensure fair and objective handling of voters’ mandates, as expressed by their



signatures, are wholly absent, leaving Defendant Clerks untrammeled discretion to



reach arbitrary conclusions. When combined with the same Clerks’ undisputed public



declarations of intended outcomes and other blatant acts indulging one (anti-recall)



side of the subject election (also See Part II, below), the vagueness and lack of



substantive and procedural rigor opens Michigan’s Recall Law to the very sort of



cynical and calculated mischief that has resulted in the present case: The expressed



will of over 7,100 voters who provided signatures – very nearly half of those involved



in the recall petition campaign - has been arbitrarily trampled by official misconduct.



Though Article I, Section 4 of the U.S. Constitution allows States the authority to



regulate elections, actions by state officials to undermine the freedom of voters’



expressions must be narrowly tailored, and `advance a compelling state interest.



Timmons v Twin Cities Area New Party, 520 US 351, 117 S Ct 1364, 137 LEd2d 589



(1997)(“there must be a substantial regulation of elections if they are to be fair and



honest and if some sort of order, rather than chaos is to accompany the democratic



process”). But wholesale disregard of voters’ will is frowned upon by federal Courts:



“As with the law in general, the First Amendment is a jealous mistress. It enables the people

to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds,

and to alter or preserve how we govern ourselves. But in return, it demands that sometimes

seemingly reasonable measures enacted by our government give way.” Citizens for Tax Reform v

Deters, 518 F.3d 375 (6th Cir., 2008):



In the present case, Defendant Clerks’ superficially “reasonable” process of reviewing



signatures for genuineness, and for that matter, other questionable factors, is one



which directly abridges voters’ First Amendment and civil rights to express views.



Even if that process had been crisply and well regulated by sound procedures,



applying clear, objective standards, there would have been a need to exercise caution.



In the present case, given Defendant Carr’s brazen and reckless, open declarations



rabidly favoring a specific outcome, neither the letter nor spirit of this admonition



has been honored. This case plainly cries out for this Honorable Court’s intervention.



Based on the demonstrable abridgment of due process alone, even without reference



to the additional statutory lapses cited in Part II, below, grant of injunctive relief is



not just appropriate, but imperative. Even if the allegations now at bar were later



somehow deemed unmeritorious (as was the case for the petitioner in Bradbury,



where numerous safeguards absent here were in place to protect voters’ interest



in a fair petition review process), preliminary injunctive relief would be proper,



see Part III, below, and all the more so here, because the present case involves none of



the safeguards ultimately identified in Bradbury.





































II. Clear Statutory Violations Augment Bases for Relief to Plaintiffs



Occasionally, elections officials engage in an act or practice which simply



flouts applicable election laws, right on their face. When this occurs, not only



is a preliminary injunction proper (see Part III, below), but permanent relief



should also follow. Such was the case in United States Student Association



Foundation / NAACP v Land, F3d , 08-2352 (6th Cir, 2008)(“USSAF”).



also decided based on the conduct of election officials here in the State of Michigan.



In USSAF, supra, plaintiffs brought on their request for a preliminary injunction



(and later, permanent relief) based on election officials’ wholly unauthorized



practice of automatically rejecting a voter’s registration whenever that voter’s



registration card was returned by postal officials to election officials as “undeliverable”.



The Plaintiff petitioners had received their preliminary injunction in USSAF, and



Defendant officials on appeal were pressing for a stay of that injunction, leaving it



in place. The challenged practice directly contravened express provisions of the



National Voting Rights Act, 42 USC 1973gg-6(a)(3)-(4), which mandated in clear,



simple English, “A registrant’s name may not be removed from the official list of



eligible voters except at a registrant’s request, due to criminal conviction or mental



incapacity as provided by state law, the death of the registrant, or due to a change



of the registrant’s residence”. The latter provision, “change of registrant’s residence”



was limited to specific situations defined as those in which the voter confirmed a



move in writing, or had failed to respond to specified notices and had not appeared



to vote in two general elections for Federal office. 42 USC 1973gg-6(d). There was



no ambiguity in the Voting Rights Act which Michigan officials violated in USSAF.



Michigan election officials were automatically disqualifying voters in derogation of law



In the present case, Defendant Clerk Carr has acted in a similar, statute-defying



manner, with regard to another statute which addresses issues of voter registration,



as well as validity of signatures. In this case, Defendant Carr honored as properly



submitted, and reflexively indulged as if properly made, not one but THREE flawed



“challenges” presented by a party who is clearly NOT authorized to do so under the



clear and simple language of MCL 168.961a(2):



“An officer whose recall is being sought may challenge the validity of the registration

or the validity and genuineness of the signature of a circulator or person signing the

recall petition. The officer whose recall is being sought shall have not less than 8 days…”



The above language makes no more allowance for submission of challenges by proxy



than the National Voting Rights Act did for automatic disqualification of voters from



the return (as “undeliverable”) of a voter registration card. In the present case, the



statutory proscription of official action (namely, honoring and/or indulging challenges



submitted by proxy entities or signers) is even more clear than that of the Voting Rights



Act deemed sufficient to warrant relief in USSAF, supra. In this case, there was no



need for officials to reference two separate provisions of law, as there was in USSAF.



Indeed, the clear language of MCL 168.961a(2) stands by itself, without need of



secondary provisions to refine or narrow the meaning of a statutory prohibition.



The language of MCL 168.961a(2) actually repeats, making clear that the intention of



its drafters was to affirm usage as proper as expressed, namely that only “An officer



whose recall is sought” is authorized to submit challenges described in that statute.



As is apparent from the attached Appendix A, the individual who wrongly acted to



sign and submit the three statutorily defective “challenges” was one Brian Bates, whose



cited his function as “record keeper” referred strictly to a campaign finance entity



whose existence and regulatory status was wholly separate from that of the “office



holder” (Mayor).. Nothing in the statutory job description of a campaign-finance



“record keeper” authorizes that person to sign non-finance documents, let alone to act



outside the area of campaign finance, and Defendants could cite no law authorizing



campaign finance “record keepers” to sign such non-finance documents for an official.



Lame excuses could be proposed for Defendants’ deviation from statutory mandate



that the “officer” sign all challenges, but none could possibly explain the Mayor’s lapse



and even if post facto excuses are now contrived, his lapse at the time is undisputed.



In short, the defiance of statutory terms in the present case is at least as egregious as



that of the hapless officials who failed to stay the injunction against them in USAAF.



Clear statutory language was violated by elections officials in both cases, and the same



result should apply to each situation.



The present case is an even more appropriate one than USSAF for Plaintiffs to



receive injunctive relief, because here, unlike USSAF, not only was a statute brazenly



violated by an election official, that transgression was compounded by the other serious



due process abominations set forth in Part I, above. Thus, the bases for relief in the



present case are far more compound and compelling than those of USSAF (cited here



in Part II) or Bogaert (cited in Part I, above). Both of the bases set forth above, in Part



I as well as Part II, justify relief, starting with preliminary injunction, and extending to



the permanent relief sought in the Complaint.



See Part III, below setting forth factors for issuing a preliminary injunction.





III. Weighing Relevant Factors Compels Issuance of Preliminary Injunction



In deciding whether to grant or deny a preliminary injunction, Courts draw a



distinction between restraining orders which simply preserve the status quo, and



those whose effect would be to order an affirmative act. Northeast Ohio Coalition



for the Homeless v Blackwell, 467 F3d 999, 1009 (6th Cir., 2006). Injunctions which



merely preserve the status quo, to keep options open for all parties are favored, and



those which would operate to require affirmative actions to comply less so, and more



suitable for nullification with a stay. In the present case, a preliminary injunction



requiring Defendant Carr to restore stricken signatures and to thus clear the way for



certifying inclusion of the subject recall election on the ballot would merely preserve



the possibility of holding the subject recall election in time for the State’s impending



deadline to print ballots. In the unlikely event that the Court were to later find all of



Plaintiffs’ claims unmeritorious, the election could still be canceled, and the relevant



preserved portion of printed ballots simply marked off as null and void, without any



significant harm or expense to the voting public, or any of the parties to this matter.



If, on the other hand, preliminary injunction were to be denied, and it were later



determined that some of Plaintiffs’ claims herein were in fact meritorious, it would



no longer be possible to compel State officials to print ballots including the subject



recall election. This would cause perverse results: that the initial error of denying relief



would become de facto permanent, altering forever the course of history and nullifying



an election which later review would determine had been duly called for by voters.



Such a miscarriage of electoral justice would echo in shame through eternity. In short,



the equities weighing for issuance of preliminary relief overwhelm those against it.



In Northeast Ohio Coalition for the Homeless, supra, the Court noted that those



opposed to preliminary injunction have the burden of showing: “(l) whether that



(opponent) has a strong likelihood of success on the merits, (2) whether that



(opponent) would suffer irreparable injury (if injunction was granted or remained



in place); (3) whether (absence of the injunction) would cause substantial harm to



others, and (4) whether the public interest would be served (absent the injunction).”



Id., at 1009. This test also applies to issues of whether an injunction should be stayed.



In the present case, as noted above, Defendants have little likelihood of justifying



even one of their errant and due-process-corrosive courses of conduct, let alone all 17



acts or combinations of acts set forth in the Emergency Motion and reiterated in the



Statement of Facts in the original Memorandum of Law submitted by Plaintiffs herein.



On the other hand, Plaintiffs not only have an overwhelming likelihood of prevailing



on the merits, not only for the reasons set forth in Part I, above (mirroring Part I of



original Memorandum of Law), but also on the wholly separate and equally



compelling basis set forth in Part II, above (mirroring Part II of original Memorandum



of Law). In short, this first element of the test governing issuance of preliminary



injunctions powerfully supports that relief as now sought by Plaintiffs.



Second, as noted above, Defendants would suffer no irreparable injury if ordered



to certify the subject recall election, to preserve the status quo and keep all options



open for all parties to this case. If Plaintiffs ultimately prevail (as they should), early



issuance of preliminary relief would simply serve to facilitate the election called for



under law, and Defendants would be unharmed by simply being ready to hold that



election at an earlier date. But even if Plaintiffs somehow did not prevail, Defendants



could simply cancel or nullify any part of pre-printed ballots relating to this election.



Third, as noted above, absence of the injunction would cause profound and lasting



harm to Plaintiffs, the electorate, and the public at large, by allowing an election duly



called for by voters to be arbitrarily canceled, indefinitely and without justification.



That result would make a mockery of democratic process, setting dangerous precedent



Finally, as noted above, the public interest in free and fair elections (especially



those in which no county clerk has expressed any preferred outcome) would be



gravely compromised, again indefinitely and without justification. The triumph of



favoritism and tyranny over fairness and freedom would become contemporary legend



One key aspect of public’s interest is in the orderly and civil conduct of public



officials, and in their expression of respect towards the legal system which they



purport to represent. This includes those officials’ willingness to submit peaceably



to legal procedures and process, behavior which has also been sorely lacking on the



part of Defendants and their representatives. Copies of the Proof of Service Affidavit



filed by Process Server Pat Clawson (Appendix B hereto) graphically demonstrate



the unwholesome and violent manner in which these public officials reacted to being



served papers in this case. Violence inflicted on Plaintiffs’ process server, along with



astonishing vulgarity and obvious contempt for these proceedings on the part of these



officials as they feverishly tried to avoid service, is chronicled in the process server’s



Affidavit, and these incidents have become the subject of police reports and felony



assault complaints filed by that process server. The Court is urged to read Paragraphs



19 through 21 for a dramatic demonstration of these officials’ attitude towards process



In short, all factors favor curbing these officials’ misconduct and disdain for law.



Conclusion



Due process violations are undeniable, based on lack of manifest standards for



disqualifying signatures, and the utter lack of cognizable procedures for applying those



standards, or even ensuring qualifications of those who did so for Defendants. Separate,



clear statutory violations augment the many bases for issuance of relief to Plaintiffs.



Finally, weighing all relevant factors simply compels issuance of a preliminary injunction





















Respectfully submitted,



Dated: September 4, 2010



________________________

F. Anthony Lubkin (P32740)

Attorney for Plaintiffs

4844 Apache Path

Owosso, MI 48867

(248) 496 5222

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