Sidney Powell, et al. v. Gretchen Whitmer, Governor of Michigan, et al.

The Sixth Circuit upheld large joint-and-several monetary sanctions and bar-referral sanctions under Rule 11(c)(2) for a complaint against Michigan’s 2020 election and under 28 U.S.C. § 1927 for not dismissing the case as moot when the Electoral College voted. These sanctions chill and burden the First Amendment right to petition in unpopular cases. The Rule 11 sanctions were improper because the served motion did not: seek the same relief as the filed version; include the filed version’s detail and 38-page brief; or describe the specific conduct to be sanctioned. The Circuits are split on the trigger for the 21-day safe harbor for Rule 11(c)(2) sanctions (i.e., serving papers identical to the filed version versus various lesser tests), as well as on the need to show conduct akin to contempt for Rule 11(c)(3) and to assess ability to pay. The § 1927 sanction was improper because the Elections and Electors Clause claims did not become moot when the Electoral College voted, providing an opportunity to resolve not only the justiciability of those claims, but also Circuit splits on § 1927’s need to find bad faith and to assess attorneys’ ability to pay. The questions presented are:

1. Whether serving a Rule 11(c)(2) motion that seeks different relief and lacks the filed version’s brief and details triggers the 21-day safe-harbor period.

2. Whether the lower court’s sanctions otherwise complied with Rule 11 or can be made to so on remand.

3. Whether the elector-plaintiffs’ Elections and Electors Clause claims presented an Article III controversy before and after the Electoral College voted.

4. Whether the lower court’s sanctions otherwise complied with § 1927 or can be made to so on remand.