Wednesday, September 8, 2010

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

Attorney F.Anthony Lubkin
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.


DAVID DAVENPORT, author of Recall Language, and Volunteer for


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,


Case No.: 2:10-13503-SFC


Hon.: Sean F. Cox


CITY OF FLINT, a Michigan Municipal Corporation

MICHAEL CARR, Genesee County Clerk and

INEZ BROWN, Flint City Clerk


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





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

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

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


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


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


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


(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.


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


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.






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

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



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


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


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.


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.


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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