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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