By Ben Solis
Gongwer News Service
The 15 Republican electors facing criminal charges for their part in an alleged scheme to overturn the 2020 election results had yet another day in court on Wednesday, as the cohort sought a stay of discovery from the Court of Appeals in a separate but related civil case.
The defendants – Kathleen Berden, William Choate, Amy Facchinello, Clifford Frost, Stanley Grot, John Haggard, Mari-Ann Henry, Timothy King, Michele Lundgren, Meshawn Maddock, James Renner, Mayra Rodriguez, Rose Rook, Marian Sheridan, Kenneth Thompson, and Kent Vanderwood – are hoping the appellate court will pause proceedings in the civil case while Lansing 54-A District Judge Kristen Simmons mulls a decision to bind them over for trial in Ingham Circuit Court.
Each of the 15 Republican electors alleged to have assisted the 2020 campaign of now President-elect Donald Trump by holding a secret meeting and filing falsified election certificates to the U.S. Senate.
Meanwhile, the defendants in that case are currently being sued in Kent Circuit Court by the 2020 Democratic electors, who alleged that their Republican counterparts’ actions injured them as much as they are alleged to have injured the peaceful transfer of power following that year’s election.
The defendants in 2023 filed motions to stay discovery in the case pending the outcome of Simmons’ decision, but the trial court denied the motion soon afterward.
On appeal, the defendants allege the trial court abused its discretion by failing to order a stay, calling the civil case and the criminal case a classic and textbook example of parallel prosecution, violating their Fifth and 14th Amendment rights.
Before the court in oral arguments on Wednesday were Kyle Bristow, attorney for Henry, and George Donnini, attorney for Sheridan. The panel includes Judge Sima Patel, Judge Christopher Murray and Judge Christopher Yates.
Bristow said no decision in the criminal case is expected until late March or April, and that the trial court should have recognized the parallel prosecution dynamic before issuing its order to continue discovery.
“The issue of what should happen to a civil case while there is a pending parallel criminal prosecution is very common. I have, other than this case, three other active cases involving this very issue, and trial court judges deal with them all in different ways,” Bristow said. “Some judges don’t issue stays, which is what happened in this case, another judge outright stayed the entire case. For another case, the judge prohibited discovery against my client, but otherwise allowed me to utilize discovery devices against the opposing party. So, I’m just hoping that we can obtain some clarity.”
Murray interjected, asking Bristow if his statement about judges having discretion and differing opinions on decisions to stay undercut his client’s argument.
“There are a number of different factors the 6th U.S. Circuit Court of Appeals uses, and ultimately, when or if these factors are taken into consideration for purposes of our civil action, our case, the stay should have been ordered,” Bristow argued.
Yates said that if you balance the factors, however, you wind up at a decision that’s insulated from review except for abuse of discretion.
Bristow said he couldn’t comment on that, but Yates said he conceded in his brief that the decision was in fact an abuse of discretion.
“If a trial court painstakingly goes through all the five factors and makes findings, I think you’ve conceded that some could come out in favor of the stay, some could come out against the stay,” Yates said. “But in any event, as Judge Murray points out, it’s hard to say that that could ever be an abuse of discretion unless the court utterly refuses to consider the factors that go into the decision.”
Bristow said it would be a case-by-case analysis.
“In my experience when it comes to civil cases, a lot of judges are amenable to staying them,” he said. “In this case, based on my review of the record, I’m of the impression that our trial court judge didn’t review really any of the factors and refused to stay the case.”
Yates also was confused about a summary disposition motion that was also filed along with the motion for a stay of discovery.
“It seems to me that if the case is going to go forward, there out to be some threshold determination about whether it’s even viable,” Yates said. “The last representation that I found in the briefs is that it was noticed for oral argument on Friday, January 5, everyone convened, and then the judge indicated that she wouldn’t decide it, because the case was pending on appeal.”
Bristow said that the trial court judge actually refused to decide what to do with the pending motion for summary disposition but did make it clear that discovery would otherwise proceed.
Yates said the way the position is worded, Bristow averred the whole case might very well be over if the disposition motion is decided in their favor, and that they wouldn’t have to worry about the Fifth Amendment implications in the context of the civil case.
Bristow said that was correct.
“We would very much like that to happen in this case, but the trial court judge would not entertain that motion, and that gave rise to my motion for a stay that I filed with this case,” Bristow said. “This court did stay the civil case pending this appeal.”
Donnini also said the trial court’s refusal to issue a stay was “absolutely an abuse of discretion.”
“What’s missing here, and what opportunity is presented for this court, is to provide guidance on the current standards that are over 50 years old,” Donnini said. “Obviously, when liberty is at stake versus property estate, we have to focus on that. So, to do something in the civil context that could jeopardize the criminal case is really not a place that a criminal defendant ought to be.”
Yates, in a nod to Donnini, who recognized the judge’s time as a federal prosecutor and a defender in his argument, said it was his practice in all his years as a trial judge to stay a civil case while a criminal case is pending.
However, Yates leaned toward Murray’s position – noting an overarching concern for the panel – that they are simply looking for an abuse of discretion.
In this case, Yates said, “that’s very hard to find.”
Gongwer News Service
The 15 Republican electors facing criminal charges for their part in an alleged scheme to overturn the 2020 election results had yet another day in court on Wednesday, as the cohort sought a stay of discovery from the Court of Appeals in a separate but related civil case.
The defendants – Kathleen Berden, William Choate, Amy Facchinello, Clifford Frost, Stanley Grot, John Haggard, Mari-Ann Henry, Timothy King, Michele Lundgren, Meshawn Maddock, James Renner, Mayra Rodriguez, Rose Rook, Marian Sheridan, Kenneth Thompson, and Kent Vanderwood – are hoping the appellate court will pause proceedings in the civil case while Lansing 54-A District Judge Kristen Simmons mulls a decision to bind them over for trial in Ingham Circuit Court.
Each of the 15 Republican electors alleged to have assisted the 2020 campaign of now President-elect Donald Trump by holding a secret meeting and filing falsified election certificates to the U.S. Senate.
Meanwhile, the defendants in that case are currently being sued in Kent Circuit Court by the 2020 Democratic electors, who alleged that their Republican counterparts’ actions injured them as much as they are alleged to have injured the peaceful transfer of power following that year’s election.
The defendants in 2023 filed motions to stay discovery in the case pending the outcome of Simmons’ decision, but the trial court denied the motion soon afterward.
On appeal, the defendants allege the trial court abused its discretion by failing to order a stay, calling the civil case and the criminal case a classic and textbook example of parallel prosecution, violating their Fifth and 14th Amendment rights.
Before the court in oral arguments on Wednesday were Kyle Bristow, attorney for Henry, and George Donnini, attorney for Sheridan. The panel includes Judge Sima Patel, Judge Christopher Murray and Judge Christopher Yates.
Bristow said no decision in the criminal case is expected until late March or April, and that the trial court should have recognized the parallel prosecution dynamic before issuing its order to continue discovery.
“The issue of what should happen to a civil case while there is a pending parallel criminal prosecution is very common. I have, other than this case, three other active cases involving this very issue, and trial court judges deal with them all in different ways,” Bristow said. “Some judges don’t issue stays, which is what happened in this case, another judge outright stayed the entire case. For another case, the judge prohibited discovery against my client, but otherwise allowed me to utilize discovery devices against the opposing party. So, I’m just hoping that we can obtain some clarity.”
Murray interjected, asking Bristow if his statement about judges having discretion and differing opinions on decisions to stay undercut his client’s argument.
“There are a number of different factors the 6th U.S. Circuit Court of Appeals uses, and ultimately, when or if these factors are taken into consideration for purposes of our civil action, our case, the stay should have been ordered,” Bristow argued.
Yates said that if you balance the factors, however, you wind up at a decision that’s insulated from review except for abuse of discretion.
Bristow said he couldn’t comment on that, but Yates said he conceded in his brief that the decision was in fact an abuse of discretion.
“If a trial court painstakingly goes through all the five factors and makes findings, I think you’ve conceded that some could come out in favor of the stay, some could come out against the stay,” Yates said. “But in any event, as Judge Murray points out, it’s hard to say that that could ever be an abuse of discretion unless the court utterly refuses to consider the factors that go into the decision.”
Bristow said it would be a case-by-case analysis.
“In my experience when it comes to civil cases, a lot of judges are amenable to staying them,” he said. “In this case, based on my review of the record, I’m of the impression that our trial court judge didn’t review really any of the factors and refused to stay the case.”
Yates also was confused about a summary disposition motion that was also filed along with the motion for a stay of discovery.
“It seems to me that if the case is going to go forward, there out to be some threshold determination about whether it’s even viable,” Yates said. “The last representation that I found in the briefs is that it was noticed for oral argument on Friday, January 5, everyone convened, and then the judge indicated that she wouldn’t decide it, because the case was pending on appeal.”
Bristow said that the trial court judge actually refused to decide what to do with the pending motion for summary disposition but did make it clear that discovery would otherwise proceed.
Yates said the way the position is worded, Bristow averred the whole case might very well be over if the disposition motion is decided in their favor, and that they wouldn’t have to worry about the Fifth Amendment implications in the context of the civil case.
Bristow said that was correct.
“We would very much like that to happen in this case, but the trial court judge would not entertain that motion, and that gave rise to my motion for a stay that I filed with this case,” Bristow said. “This court did stay the civil case pending this appeal.”
Donnini also said the trial court’s refusal to issue a stay was “absolutely an abuse of discretion.”
“What’s missing here, and what opportunity is presented for this court, is to provide guidance on the current standards that are over 50 years old,” Donnini said. “Obviously, when liberty is at stake versus property estate, we have to focus on that. So, to do something in the civil context that could jeopardize the criminal case is really not a place that a criminal defendant ought to be.”
Yates, in a nod to Donnini, who recognized the judge’s time as a federal prosecutor and a defender in his argument, said it was his practice in all his years as a trial judge to stay a civil case while a criminal case is pending.
However, Yates leaned toward Murray’s position – noting an overarching concern for the panel – that they are simply looking for an abuse of discretion.
In this case, Yates said, “that’s very hard to find.”
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