Lawyers for Minnesota government watchdog attorney Erick Kaardal contend that he did nothing wrong when he filed a lawsuit in Washington, D.C.’s U.S. District Court seeking to overturn the presidential election.
Therefore, the judge who presided over the case should not refer him for possible sanctions.
That’s the essence of a Feb. 5 reply to federal Judge James E. Boasberg’s order to show cause why Kaardal should not be referred for discipline.
Kaardal filed the suit, Wisconsin Voters Alliance et al. v. Pence et al., late last year. Plaintiffs included 23 organizations, individuals and elected officials who sued, in part, to prevent Congress from declaring Joe Biden president.
Boasberg was so incensed with Kaardal’s “risible” and “prolix” complaint that he warned the attorney that he might be referred to the D.C. District Court’s Committee on Grievances.
True to his word, when Kaardal withdrew the suit on Jan. 7 — one day after the siege on the U.S. Capitol — Boasberg issued a minute order requiring Kaardal to state his best case as to why sanctions wouldn’t be appropriate.
Attorney Channing L. Shor, writing on Kaardal’s behalf, offered that explanation in a 13-page reply memo filed earlier this month.
“Clear and convincing evidence does not exist that Erick Kaardal, esq., engaged in conduct that would warrant discipline,” writes Shor, of the D.C. firm Eccleston & Wolf, P.C. Without clear and convincing evidence, she argues, a referral for discipline would be unwarranted.
Likewise, Kaardal’s response memo says, there is no clear and compelling evidence that he acted in bad faith or filed a frivolous lawsuit.
“In fact, just the opposite,” Shor argues.
Shor points to a 42-page memo from Kaardal, submitted with his reply, in which the lawyer details the basis in law and fact for his lawsuit, as well as the research underpinning its legal arguments.
“As Mr. Kaardal declares under penalty of perjury, he takes his duty as an officer of this court seriously and had a good faith belief that his clients had a meritorious claim,” the reply memo says.
Kaardal also disagrees with Boasberg that he failed to “make any effort to serve or formally notify any defendant.”
In fact, Shor writes, Kaardal started serving defendants on Dec. 22 and had served all but two by the time Boasberg filed a Jan. 4 memorandum opinion denying Kaardal’s motion for preliminary injunction in the case.
In the end, Shor argues, because there is no clear and compelling evidence, and because “a significant chilling effect on future litigants would occur” if he is referred to the disciplinary committee, the judge should refrain from doing it.
Lawyer Justin M. Flint, who works for the same firm as Shor, also is on Kaardal’s legal team.
Judge Boasberg had not responded to Kaardal’s filing as of this writing.
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