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Monday, December 07, 2020

Kraken the 11th Amendment

Judge Parker of the Eastern District of Michigan denied a preliminary injunction in the Michigan Kraken suit. One basis for dismissal, which I had not seen in these suits, was 11th Amendment. The court held that Ex Parte Young did not allow the § 1983 claims against the individual officers because the requested injunction is retroactive rather than prospective. EPY requires that the plaintiff seek prospective relief to end a continuing violation of federal law. This is not the mine-run EPY action, in which the plaintiff seeks to stop continuing enforcement of a constitutionally invalid law; the plaintiffs seek to "undo what has already occurred"--the certification of the election and the slate of Michigan electors.

This does not seem quite right to me. This is not a completed past violation. Plaintiffs do feel the ongoing effects of the constitutionally defective election and certification--the wrong candidate was certified as winner and the wrong electors appointed, in violation of these plaintiffs' constitutional rights. The relief, if granted, would have prospective effect--they would be back in the place they would be had the violative certification not occurred and in a position to have their rights remedied prospectively by a proper future certification. The analogy is a reinstatement claim, which is allowed under EPY--the unlawful firing occurred in the past, the plaintiff continues to feel the ongoing effects of the firing, and the court order will restore the plaintiff to where she would have been had she not been unlawfully fired.

The plaintiffs cannot get the remedy sought for other reasons--I doubt the court could order decertification, not to mention that their rights were not violated to begin with. But that does not mean the remedy is not "prospective" or the violation not "ongoing." Another way that all of these doctrines conflate jurisdiction, merits, and remedies.

Posted by Howard Wasserman on December 7, 2020 at 01:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I think of this as interacting with the general rule of Ex Parte Young against requiring affirmative relief. I buy the theory that EPY is all about anti-suit injunctions.

So you can't order recertification

I get how there's an ongoing injury. But it seems they want retrospective relief (uncertify Biden) and not just prospective relief (from here on out, ignore the certification of Biden, and act as though Trump was certified).

Posted by: McKellar | Dec 7, 2020 3:34:14 PM

Very interesting. The court claims indeed that, I quote:

Before this lawsuit was filed, the Michigan Board of State Canvassers had already certified the election results and Governor Whitmer had transmitted the State’s slate of electors to the United States Archivist.(ECF Nos. 31-4, 31-5.) There is no continuing violation to enjoin.

End of quotation:

Yet, you don't offer, what would be then the deadline, from which and on, there is no prospective remedy no more. Maybe you would offer, the count of votes in the Senate ? (declaring the president and VP, after counting the elector votes).

When exactly then? In every given moment, a fraud of some sort, can be alleged then.


Posted by: El roam | Dec 7, 2020 2:23:15 PM

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