Defendants’ briefs are riddled with gaps, in coverage of subject matter,
in the logic of their conclusions as to the limited areas that they do address, and
as a result, in their overall credibility. Nothing in those briefs, nor in any argument
genuinely arising from them, should give this Court any reason to withhold the
relief of a preliminary injunction as requested by Plaintiffs herein.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DAVID DAVENPORT, author of Recall Language, and Volunteer for
COMMITTEE TO RECALL DAYNE WALLING, and
DAN PARKS, in his capacity as Committee Chairman
CRAIG SMITH, in his capacity as Committee Treasurer.
ALEX HARRIS. in his capacity as its Committee Vice-Chairman,
Plaintiffs
Case No.:
vs.
Hon.:
COUNTY OF GENESEE,
CITY OF FLINT, a Michigan Municipal Corporation
MICHAEL CARR, Genesee County Clerk and
INEZ BROWN, Flint City Clerk
Defendants
F. Anthony Lubkin (P32740) Plunkett & Cooney
Attorney for Plaintiff Committee Attorney for Defendants Carr
Recall Dayne Walling and its Officers and County of Genesee
4844 Apache Path 111 E. Court Street
Owosso, MI 48867 Flint, MI 48502
(248) 496 5222 (810) 235 5100
Miller Canfield Peter Bade (P47546)
Attorneys for Inez Brown Attorney for City of Flint
One Michigan Avenue, Suite 900 1101 S. Saginaw, Third Floor
Lansing, MI 48933-1609 Flint, MI 48502
(517) 485 7020 (810) 766-7146
REPLY BRIEF OF PLAINTIFFS
AS TO MOTION FOR PRELIMINARY INJUNCTION
STATEMENT OF FACTS
The Statement of Facts from the original Memorandum of Law in support of the
Emergency Motion for Preliminary Injunction, citing the seventeen (17) ways in which
Defendants violated due process and statutes, is incorporated herein by reference as if
repeated herein in its entirety. In addition, Plaintiffs note that Defendants, consistent with
their pattern of marginally civil conduct of their defense herein, delayed responding to
either of Plaintiffs’ Briefs/Memoranda of Law until an outrageously late hour, filing their
responsive briefs in the night hours of September 8, 2010, less than sixteen hours before
the scheduled hearing for the morning of September 9, 2010. In those responsive briefs,
there were citations which were inapposite, and arguments which either missed the mark
or which were grossly incomplete in failing to address all of the issues at bar. This brief
is provided to simply bring this Court’s attention to the deficiencies of Defendants’
presentation of law, with respect to (1) incompleteness of responses, in failing to even
address in anything approaching a comprehensive or orderly fashion, all of the points
raised in the original and supplemental brief of Plaintiff and (2) inapposite nature of
responses, in making arguments which are either flawed, or based upon completely
unwarranted leaps of logic, which resulted in Defendants taking positions which are
in fact inimical to their own arguments.
CONTROLLING AUTHORITIES
Plaintiffs incorporate by reference the Index of Authorities set forth in their
Supplemental Memorandum of Law dated September 4, 2010, as well as the
Controlling Authorities cited in the Responsive Briefs of Defendants Carr and
Genesee County, and that of Inez Brown, as if each is repeated herein in its entirety.
ARGUMENT
I. Incomplete Arguments by Defendants; Failing to Address Most Key Issues
Defendants acknowledge Plaintiffs’ argument citing seventeen ways in which
Defendant Clerks violated due process and/or statutes, but in their responses, they only
address a mere handful of these flashpoints (Defendant only addressed violations set forth
in Paragraphs #3, #6, #7, and #14 of the original Statement of Facts). Specifically,
Defendants completely ignore the following acts committed in violation of due process:
#1. Pre-judging the outcome of the recall election, abrogating outcome-neutral role
#2. Announcing outcome pre-judgment publicly, compounding derogation of neutrality
#4 Striking signatures without objective standards, abridging substantive due process
#5 Striking signatures without cognizable procedures, abridging procedural due process
#8 Striking signatures based on unfounded findings of forgery, by untrained operatives
#9 Making purportedly complete rounds of review, only to follow with additional rounds
#10 Giving direction to another Clerk’s office, tainting independence of the other Clerk
#11 Giving direction to the other clerk which tilted net toward one side (disqualifying)
#12. Accepting direction from another Clerk, tainting independence of servient Clerk;
#13 Accepting direction from other clerk which tilted toward one side (disqualifying)
#15 Publicly ridiculing as “unheard-of” (as if to nullify) 2007 amendment on challenges
#16 Announcing artificially (non-state-mandated) close deadlines to exclude from ballot
#17 Engaging in violent resistance to process server; failing to address theft of signatures
Each of the foregoing acts might have raised serious due process concerns by itself, and
taken in combination all the more so. Still, Defendants only chose to address the others.
Defendants first urge that Plaintiffs are “only” criticizing the “signature validation
process itself”, as if this somehow differs from criticizing how that process was applied
by these Clerks. The fact is that there is no significance in the distinction. The process as
applied by these Defendants – involving all of the flaws listed above, and the few which
they have seen fit to address – is indeed fatally flawed. If the election law is construed to
require certain protocols, then these must be followed by all county clerks, and any
deviation from those standards would violate those standards and hence, due process.
If, on the other hand, the law allows such wide latitude for local Clerks’ manipulation,
then the law either on its face, or as applied by these Clerks, would be unconstitutional.
Compare the tight regulations in Lemons v Bradbury, 538 F3d 1098 (9th Cir, 2008),
where due process was found to exist. That case showcased not one but four (4) major
procedural and training safeguards against due process infringement which are wholly
absent here: (1) public involvement in signature review process; (2) extensive training
of Clerk operatives in handwriting analysis; (3) multi-tiered signature rejection processes
in which supervisors reviewed any initial decision to strike a signature and (4) warnings
on petitions cautioning signers to try to match their voter registration card signatures.
Though Defendants claim Plaintiffs cite no authority for the proposition that there is a
right to public involvement in the signature review process, the Bradbury case makes
clear that safeguards such as public involvement are favored by reviewing courts,
especially combinations of safeguards, Thus, even though that particular safeguard may
not be mandatory to avoid due process concerns, some safeguards have to be present,
Bradbury makes clear there are two ends to the due process spectrum, the favored end
where Clerks in that case stood tall, and the dishonorable end where ours duck and cringe
II. Defendants’ Inapposite/Misleading Arguments as to Remaining Issues on Merits
Defendants claim that Plaintiffs cite no authority for mandating specific state codes.
Plaintiffs do not make that argument; instead, Plaintiffs only note that if codes are to be
the standards set by state election officials, either by expressly preferred practices or by
promulgated rules, these codes should be consistently applied by all county Clerks. If no
such codes are binding on any Clerk, then their use by some and not others becomes
arbitrary and whimsical, raising equal protection as well as due process concerns.
Defendants claim that they advised Plaintiffs what “NHS” meant, that Plaintiffs
acknowledged knowing what it stood for, and that as a result, Plaintiffs had been duly
“advised” why signatures bearing that code were excluded. Defendants also made much
of their argument that Plaintiffs supposedly had done nothing to show that the code was
ever wrongly applied by the Clerks. But these arguments are both false and empty.
Plaintiffs have proven that the “NHS” code was arbitrarily and wrongly applied, by
having obtained Affidavits from numerous voters whose signatures had been marked up
with this contrived “rogue code” by Defendant Clerks, but who nonetheless affirmed
the signatures so marked as having in fact truly been their own. Indeed, using a strictly
random sample of signatures marked with the wrongful “NHS” code, fully100 percent
of those voters whom Plaintiffs could locate to query as to signature genuineness did in
fact affirm their having signed. See Affidavits of Dan Parks, Committee Chairman and
John Carpenter, Volunteer, confirming that EVERY voter whose signature was marked
“NHS”, and who was thereafter reached to affirm their signature, did so and swore to it.
Plaintiffs have also proven that another rogue code “CD” (meaning “cannot
determine”), arbitrarily applied by Defendant Clerks to purportedly signify illegibility,
was also wrongfully applied to dozens, if not hundreds of otherwise valid signatures.
See Affidavits of Chairman Dan Parks, Volunteers John Carpenter and Mike Killbreath.
also making clear that Defendant Clerks’ machinations of rejecting signatures using their
contrived “rogue code” known as “CD” had also caused widespread wrongful exclusions.
Defendants go on to address Violation #3, the referral of complaints to prosecutors.
Defendant Carr claims that he merely referred an isolated act of wrongful certification of
a petition sheet (a cognizable misdemeanor) to authorities for investigation. This is a
disingenuous and ridiculously partial description of what Defendant referred, and how he
did it. Defendant Carr didn’t confine himself either to referring specific, technical acts
violating petition laws, but instead openly admitted to making referrals of “complaints”
about what petition circulators were saying (not merely signing or certifying) and what
they were saying generally (not just specifically in isolated instances). Worse yet, Carr
made these gratuitous “referrals” for prosecution conspicuously and with much fanfare
in local print media, so that his words would be a powerful, amplified tool to intimidate
petition circulators during the height of the signature gathering process. This was an
act of widespread voter intimidation and election interference funneled through the media
and contrasts wildly with Carr’s prim portrayal of himself as having discreetly referred
a singular, technical act of wrongful certification.
Addressing Violation #14, Defendant Carr than states that he did not err in accepting
challenges because there is “no requirement that the challenge be directly made by the
official, only that it be made by the official.” In language that echoes former President
Clinton’s infamous parsing of the word “is” (wherein he said an answer depends on what
the meaning of ‘is’ is”), Defendants have raised a classic distinction without a difference.
The statute makes clear that its language makes no allowance for actions by proxy.
Defendants claim that the Mayor’s campaign committee could act on his “behalf”.
but that committee, and its “record keeper” (whose statutory job description is limited
to finance issues) has no role as signer of non-finance documents. The same concerns
regarding genuineness of signatures and the signer’s intention (in this case, that of the
officer facing recall) which underlie laws about petition signatures underlie the challenge
law amendment whose clear language Defendants hope to avoid, and ask this Court to
nullify by fiat. In its wisdom, the Legislature saw fit to require the subject officer to
personally vouch for any claimed challenges, so as to ensure that no one with an agenda
separate from, or at cross-purposes with that official (or unauthorized by that official)
were to interfere in the process. Statutory recall procedures invariably involve only three
parties: the sponsor (here, Plaintiff), the officer subject to recall (here, the Mayor) and
filing officials (here, the local Clerks). No fourth party is included in any recall procedure
Defendants make much of the 2004 case of DeLeeuw v State Board of Canvassers,
263 Mich App 497 (2004), in which Republicans signed petitions to nominate Ralph
Nader for U.S. President, over strenuous objections of Democrats, who claimed that such
action by proxy violated statutory language referencing prospective new candidates as
“a person”. The argument advanced in that case was that only a particular “person”, the
candidate himself could sign his own nominating petition, but the argument was rejected
and proxy action by members of another party was permitted to go forward.
Whether by oversight, careless analysis or outright deception, Defendants’ reliance on
DeLeeuw is horribly misplaced. That case is the exact opposite of the present one, and
critical factors which compelled the Court to rule as it did in that case are absent here.
Indeed, applying the standards of Deleeuw to the present case mandate the opposite result
In DeLeeuw, proposed action by proxy stood to ADD options to the ballot for voters:
“Although the challenge to the petition argued that allowing third persons to file petitions ‘opens up unlimited opportunity for mischief and manipulation, all the examples cited involve an attempt to keep a candidate off the ballot. In this case, the object was to get Nader on the ballot, which vindicates the voting rights of the voters who would prefer to vote for Nader. The expression of political preference is the bedrock of self governance’ (citation omitted).” There is a fundamental difference between actions to get a candidate’s name on the ballot and actions to prevent it from appearing. Associating for the purpose of getting a candidate’s name or legislative proposal on the ballot is protected activity under the First Amendment; conspiring for the purpose of having it removed is not…” Id.
Contrast the present case, where honoring the official’s action (a challenge) by proxy
will have the opposite, disfavored effect of narrowing the options available to city voters
who may prefer to address recall issues sooner rather than later. This applies even more
forcefully when one considers the plight of city voters looking ahead to bleak times of
badly compromised public (and hence, personal) safety, record levels of assault and arson
and disastrous budget woes, all looming in the upcoming winter of their discontent. For
this Court to indulge the Clerks’ cynical ploy to overlook statutory flaws of challenges
would inevitably lead to the canceling of an election, narrowing electoral choices for all.
A second major distinction between the present case and DeLeeuw was that the ballot
issue being affected (nomination for US President) was a federal office, whereas the issue
at hand in the present case is at the other end of the geographical spectrum, a uniquely
local (city) issue. The Court in DeLeeuw focused on the impact on a federal candidacy:
“A requirement that any candidate for public office file his petition in person would be unconstitutional as a severe
burden on a qualified individual’s right to seek public office, at least with respect to federal positions, which burden
could not be justified by a compelling state interest” Id.
The prospect of forcing a candidate for US President to sign a nominating petition in each
of 50 states in person would indeed have created extreme burdens on such candidates,
and would surely discourage candidates from coming forward to broaden voter options.
Contrast the present case, where a mere one-time requirement for an isolated office-
holder (subject of a recall), already sitting in office, to simply acknowledge and sign for
any challenges to his recall, would add no comparable burden to his routine. More
importantly, enforcing the requirement of signing personally for challenges would
normally raise no barrier to the broadening of electoral options (though in this case,
not doing so would in fact foreclose all options of having voters visit recall issues).
Curiously, DeLeeuw contains language which is hauntingly apropos to this case:
“The myriad laws passed to protect the sanctity of petitions and the public measures that incorporate the petition into
the decision making process provides ample support for the proposition that petition signers possess a legally
protected interest in having their signatures validated, invalidated, empowered or disregarded according to
established law – not the political whimsy of a rogue signature counter, clerk or delivery man “.Petitions are a vital
means of gathering the collective assent of the people, and if the law will not protect a petition signer’s interest in a
proper use of the signature, then those opposed to the petition may quickly find themselves without an adversary.” Id.
Defendants wind up their comments on the Mayor’s challenges by claiming that
allowing them was simply “harmless error” because almost all signatures challenged
were “duplicates”. This argument is false, because the signatures challenged went
beyond “duplicates”.; but more to the point, there would never have been any exclusion
of these signatures had the flawed and improper challenges been properly rejected.
It is worth noting that Defendants never cited any authority for their act of striking BOTH
signatures of a confirmed pair of duplicates, but even if they had, since the issue arose
solely as a result of defective challenges, it was allowance of these which became critical.
In short, wrongful indulgence of flawed challenges was hardly “harmless” to Plaintiffs
III. Deceptions in Defendants’ Arguments About Harm to Parties and Public
Defendants’ analysis of the prospective merits of case (Parts I and II, above) is
incomplete and off-point, but their arguments as to prospective harm to the parties
are far worse. As to irreparable harm which could result if the injunction is denied,
Defendants raise just two claims: (1) that issues of the November 3 ballot are moot
and (2) that deferral of the election from November to February would be harmless.
Both of Defendants’ claims as to this issue reek with falsity. The first claim is a
complete contrivance. Defendant Carr alone has announced and since adhered to his
hand-picked, artificial “deadline” of September 3 to place the subject recall on the
November ballot. This deadline, announced just after Plaintiffs filed their Emergency
Motion for Injunction in state Court, was interposed by Defendant strictly to foil this
litigation. Defendant Carr acknowledged that his self-styled deadline of September 3
was subject to change if a court were to so order. In point of fact, the State is the only
entity untouched by these proceedings, and its actual deadline for ballot inclusion is
September 17, which though still very close (next week) remains manageably in the
future, so that there remains prospect of printing November ballots including this recall.
The matter is simply not moot, and Defendants should be upbraided for this false claim.
Second, there is nothing about a deferred February recall election which would be
comparable to one in November. Voters who signed for recall in June and July were
demanding a prompt consideration of their issues; a delay of four months unto the
autumn was called for, but a delay twice that long, solely to accommodate brazen anti-
recall manipulation by local political operatives, would cause irreparable harm to the
principles of the rule of law, and deference to the expressed will of the voters. Meanwhile
Flint continues to be showcased as the city with the highest assault and arson rates in the
nation, since the Mayor’s policies reducing public safety staffers took effect. Murders
are running several times faster than in the years before the Mayor’s public safety
policies were implemented. Based on these considerations alone, a prospect of irreparable
harm to voters and citizens on the street appears to augment harm to the electoral process.
Defendants next claim there will be harm to others, citing the cost of printing ballots
and the costs to the Mayor in having to defend against the recall. But nothing in
Defendants’ facile arguments shows how there is any greater cost for printing or
defending against a recall which is held sooner (November) rather than later (February).
Either way, ballots will have to be printed, and the Mayor will need to raise funds.
Finally, in addressing the interest of the public, Defendants make the same hollow,
wooden arguments cited above with respect to “harm to others”, namely that there will
be a cost of printing ballots and for the Mayor to defend against recall. Again, no clue is
offered as to why the costs of each of these factors would be any greater if the election
were held promptly versus having it be held several months later. Defendants add one
final twist to their claim as to public interest, lamenting that the Mayor would face
serious distraction from City issues once a recall is certified for election. Still, Defendants
again offered no clue as to why these levels (or, for that matter costs) of purported
Mayoral distraction would be any greater or more costly if they were to be caused by
an election in November rather than in February.
In short, Defendants have offered no honest, coherent argument supporting their
side as to ANY (let alone all) of the four factors examined in deciding on whether to
issue a preliminary injunction.
CONCLUSION
Defendants’ briefs are riddled with gaps, in coverage of subject matter,
in the logic of their conclusions as to the limited areas that they do address, and
as a result, in their overall credibility. Nothing in those briefs, nor in any argument
genuinely arising from them, should give this Court any reason to withhold the
relief of a preliminary injunction as requested by Plaintiffs herein.
Respectfully submitted,
Date: September 8, 2010
________________________
F. Anthony Lubkin (P32740)
Attorney for Plaintiffs
4844 Apache Path
Owosso, MI 48867
(248) 496 5222
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