Ninth Circuit En Banc Dissent as to Sanctions on Lawyers in Kari Lake's Election-Related Litigation

From Judge Lawrence VanDyke's dissent from denial of rehearing en banc in Lake v. Gates, joined by Judges Consuelo Callahan, Ryan Nelson, Daniel Collins, Kenneth Lee, and Patrick Bumatay:

The panel decision in this case upheld a sanctions order under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 against attorneys Andrew Parker and Kurt Olsen. Parker and Olsen (collectively, "Lead Attorneys") represented plaintiffs Kari Lake and Mark Finchem in election-related litigation.

As the district court candidly acknowledged, the sanctions were intended to "send a message" to similar litigants in election-based lawsuits and to discourage litigation disfavored by the court. Zealous to safeguard the "public trust," the district court read plaintiffs' complaint out of context and in the light least favorable to plaintiffs; imposed a heightened requirement that Lead Attorneys conduct "significant" pre-filing inquiries on the basis of their clients and their cause; levied sanctions on the ground that plaintiffs made claims that, as even the district court itself recognized, the complaint never actually stated; and badly misapplied the governing legal standards.

This case involved legal claims that might charitably be characterized as aggressive. It was a Hail Mary legal theory, especially as to standing. But we encounter Hail Mary legal theories regularly in our court in a variety of contexts, and while they almost always lose, they don't get sanctioned just because they are longshots. Many cases are dismissed because the asserted injuries are too speculative to support Article III standing. A great many more are dismissed for failure to state a claim on which relief can be granted.

The law has no lack of tools short of sanctions to deal with speculative claims, adventurous legal theories, and imprecisely drafted complaints. Again, our circuit entertains cases with exceedingly improbable claims on a routine basis, which are usually (but not inevitably, which is probably why hope springs eternal) dispatched using any of the panoply of available mechanisms. If the run-of-the-mill Hail-Mary claims we routinely encounter are not sanctionable, neither were the claims in this case.

Two reasons independently made this case worthy of en banc review. First, the district court and the panel badly misapplied the standards for finding attorney conduct sanctionable. The district court flatly misread the allegations in plaintiffs' complaint. While the complaint never actually said that Arizona did not use paper ballots—a fact that the district court even acknowledged in its sanctions order—the district court nevertheless found such a claim implied in the complaint (and thus sanctionable). But the context of the complaint confirms what its plain language makes clear: The attorneys never argued that Arizona did not use paper ballots.

Although the complaint may not have been drafted with perfect precision, the district court reached the alternative conclusion only by repeatedly going out of its way to construe the complaint in the light least favorable to plaintiffs. Read in context, the complaint cannot be plausibly construed as asserting what it never said. Penumbras, emanations, and acontextual implications should be insufficient to warrant sanctions under Rule 11, and the district court abused its discretion in concluding otherwise. The panel majority ratified those errors, and in doing so reinforced the district court's departure from the Rule 11 standard and our case law interpreting that Rule.

Second, the district court boldly proclaimed that it levied sanctions on Lead Attorneys with the hope that doing so would "send a message" to deter future litigants with similar claims—or, put bluntly, to deter a specific type of election litigation. Setting aside the myriad legal problems posed by this action—not the least of which is making a hash of the Rule 11 standard—that just looks bad. And even if the inference is unwarranted, this court's refusal to grant en banc review will be construed by many as implicitly blessing the district court's weaponization of sanctions to chill politically disfavored litigation.

Who could blame them? Cudgeling attorneys into abandoning unpopular claims and clients is not what sanctions are for. While not authoritative here, the Arizona Supreme Court astutely observed that "[b]y sanctioning parties and their lawyers for bringing debatable, long-shot complaints, courts risk chilling legal advocacy and citizens raising 'questions' under the guise of defending the rule of law." "Even if done inadvertently and with the best of intentions, such sanctions present a real and present danger to the rule of law." And that "danger to the rule of law" is all the more present when the judge issuing the sanctions boldly proclaimed that such a chilling effect is an intended feature, not a bug.

We should have taken this case en banc to rectify these abuses and make clear that Article III judges are to adjudicate cases without fear or favor, remaining scrupulously neutral toward all litigants—especially in politically charged cases where the public is watching. I respectfully dissent from our failure to do so.…

You can see also the panel decision, which includes a dissent from Judge Bumatay.

Comments

[santamonica811]

It's well worth following the link and reading the entire decision. It's worth reminding ourselves how sleazy Lake is/was, how awful she is/was, and how weak her legal position was (this is regardless of how you fall on the issue of Eugene's OP: Whether or not Lake's attorney's did such a bad job as to deserve Rule 11 sanctions).

[Stupid Government Tricks]

What does her sleaziness or awfulness have to do with the legal decision?

[santamonica811]

Stupid GT,
Nothing. It's why I made a point of noting that her general awfulness was worthy of remembering...but was unrelated to the OP's actual issue.

There are people in politics who are genuinely despicable, and who--with the passage of time--fade into oblivion for many. I'd like to avoid that.

If Anthony Weiner is mentioned again in a VC post in, say, 2027, I'll be sure to mention (as an aside) how loathsome a human being he happens to be, just to make sure that VC readers who happen to be younger humans are reminded of this unpleasant fact.*

*(If any of these people actually want to turn their lives around, and decide to spend a few years volunteering in, say, an orphanage in Africa, then perhaps I'll reevaluate my position.) 🙂

[Supremacy Claus]

"As the district court candidly acknowledged, the sanctions were intended to "send a message" to similar litigants in election-based lawsuits and to discourage litigation disfavored by the court."
Deterrence is a goal of the criminal law and of punishment. Let see, if I understand it. It is a form of social learning, in which an animal changes its behavior watching another animal get punished.

Problem: You may not punish a defendant for the crime of another. This is especially true if the crime of the other has not yet been committed. In addition, the punishments of the criminal life are very severe and have not prevented crime. These include high death rates, and multiple beatings.

Of all the goals of the criminal law, only incapacitation is the sole effective one.

[ReaderY]

Deterrence has long been recognized as a perfectly legitimate legal basis for sanctions, punishments, etc. you may have a problem with it, but nobody else does. You may not be able to do it. But everyone else can.

[y81]

Really, the common law has recognized deterrence as a legitimate goal for many centuries. If someone wants to move to a non-English speaking country and start a new legal system, they are welcome to do so. I won't miss them.

[Supremacy Claus]

Deterrence violates Fifth Amendment Procedural Due Process right to a fair hearing. Is it fair to punish a defendant for the crime of another, one that has not even happened yet? Please, explain it to me.

1. Due Process Requires an Individualized Determination

The Fifth Amendment guarantees that no person shall be "deprived of life, liberty, or property, without due process of law." A core component of due process is the right to a fair hearing, which requires that:

The decision be based on the facts and circumstances of the individual case.

The person has an opportunity to present evidence and rebut the government’s claims.

The deterrence argument, by contrast, does not rely on individualized guilt or evidence. It justifies punishment or restrictions on the grounds that others will be deterred, regardless of whether the sanction is proportionate or fairly linked to the individual’s conduct.

2. Substituting Policy Goals for Adjudication

When deterrence is used as the primary justification, the legal system effectively shifts the focus:

From Did this person do something that justifies this consequence?

To What effect will this punishment have on others, society, or future crime?

That substitution undermines the due process requirement that the accused’s rights, evidence, and defenses are the center of the proceeding. Instead, the individual becomes a means to an end—punished more harshly or constrained not because of proven necessity in their case, but because of speculative social benefits.

3. Arbitrary and Disproportionate Outcomes

Deterrence-based reasoning can lead to arbitrary and disproportionate sanctions:

A defendant may be punished more severely than their conduct warrants, simply to “send a message” to others.

Courts and agencies may deny relief, not based on the person’s evidence, but to avoid setting a precedent that might encourage others.

This lack of proportionality and individualized assessment violates procedural fairness, which requires that the state’s action be rationally and fairly tied to the individual’s own acts.

4. Conflict with the Neutral Arbiter Requirement

Due process also requires that hearings be decided by a neutral arbiter who evaluates the evidence before them. When deterrence drives the decision, the arbiter is no longer neutral—they are serving as a policymaker or social engineer. This bias toward an outcome erodes the fairness of the hearing, since the result is predetermined by deterrence policy rather than adjudicated facts.

5. Precedent and Scholarly Critiques

Courts have often been wary of pure deterrence arguments in due process contexts:
Scholars argue that deterrence rationales risk turning defendants into “sacrificial examples,” which is fundamentally at odds with the principle that law protects persons, not merely social outcomes.

Summary:
The deterrence argument violates the Fifth Amendment due process right to a fair hearing because it replaces an individualized, evidence-based adjudication with a generalized policy justification. This makes the hearing unfair, arbitrary, and biased—punishing or restraining individuals not for what they did, but for the supposed effect their treatment will have on others.

[Supremacy Claus]

The utterance of any of the words, message to or future, or others should result in an immediate motion for a mistrial, and a recusal of the judge.

[Jaypd]

VanDyke of all people has no business at all writing this. He's a worthless political shill. Typical of Eugene to post this crap without comment. Get help Eugene. you're sick.

[David Nieporent]

That was a constructive comment.

[Life of Brian]

Just absolutely fascinating how you didn't also jump down SM811's throat for an equally non-constructive/off-topic comment. I wouldn't have predicted that in a million years.

[santamonica811]

(To be fair; I didn't go out of my way to insult the OP himself. I think even a mid-level lawyer could have distinguished our two cases on that basis alone.)

Or were you being sarcastic, and were you not actually fascinated by this? Because I *was* personally fascinated, and--therefore--assume that you were as well. It was the most interesting phenomenon I've observed so far today.

[David Nieporent]

Jump down throat? Your meter needs a bit of recalibration.

Also, I don't agree with you about SM811's comment, so there's that.

[ReaderY]

There is and ought to be a big difference between behavior that’s acceptable for criminals seeking to evade punishment and behavior acceptable for people seeking high public office. Muck-up-the-works legal tactics acceptable in criminal defense or even in disputes over private property can destroy the ability of a state to function if regularly done by would-be public officials challenging the outcome of elections.

If the dissent can’t see that, if they don’t understand the concepts of public trust and civic responsibility, if they see no difference between litigation over public office and litigation over private property, then not just they but we have a real problem.