The good news: Sidney Powell has finally filed her long-anticipated legal challenge to the election in Wisconsin. Alleging fraud and illegal voting practices, Powell demands that elections be thrown out involving two plaintiffs she represents. One, obviously, is Donald Trump, while the other is erstwhile congressional candidate Derrick Van Orden:
Former Trump attorney Sidney Powell filed a lawsuit in federal court on Tuesday on behalf of Van Orden and La Crosse County Republican Party chairman Bill Feehan. The suit seeks, among other relief, a new election for Van Orden and wants Gov. Tony Evers to certify the election for Trump instead of Biden.
There’s only one problem with the complaint …
A Republican candidate for Congress who lost his election on Nov. 3 says his name is being used without permission as a plaintiff in a federal lawsuit to make President Donald Trump the winner of Wisconsin’s presidential election, despite receiving fewer votes than President-elect Joe Biden.
Derrick Van Orden, who narrowly lost to U.S. Rep. Ron Kind, said Tuesday he learned through social media posts about the lawsuit that his name was being used.
I learned through social media today that my name was included in a lawsuit without my permission. To be clear, I am not involved in the lawsuit seeking to overturn the election in Wisconsin.
— Derrick Van Orden (@derrickvanorden) December 1, 2020
That’s … a pretty big problem. This isn’t on the same level as, say, demanding that Wisconsin provide all of the security video from the TCF Center, where ballots were counted. And that is where they were counted — in Michigan:
I wish I was kidding! pic.twitter.com/AP76GUYTI2
— Dave Weigel (@daveweigel) December 1, 2020
He’s not kidding. That demand is on Page 50, part of the final paragraph in the claim. It’s pretty clear that Powell used her Michigan complaint as a template or boilerplate for the Wisconsin complaint. It’s incredibly sloppy work, especially for someone whose work in Georgia in a nearly identical complaint had already been held up to some ridicule.
Speaking of Michigan, Powell has a problem with her complaint there too:
One of the witnesses in Sidney Powell’s new Michigan lawsuit says in a declaration he thinks there’s something fishy about election returns in Edison County, MI. Thing is, there is no Edison County in Michigan. pic.twitter.com/yZfDWMAFSP
— Jonathan Oosting (@jonathanoosting) November 30, 2020
There’s apparently no Edison County anywhere in the US. That’s some fine researching done by Powell’s Kraken team.
By filing a complaint listing Van Orden without his permission, though, this goes from sloppy to potentially sanctionable. Attorneys are required to submit documents on good faith. If Powell claims Van Orden as a client without his permission, that’s hardly a good-faith representation. Although it’s not without precedent, as it turns out. In 2014, a federal lawsuit got instantly dismissed when the judge found out that an attorney had never gotten permission to file a suit on someone’s behalf:
A class-action lawsuit was closed Thursday, hours after a Salt Lake City attorney insisted he had the right to use the names of a married lesbian couple without their permission in the complaint. …
Three attorneys — one a former federal judge — say Smay was out of line in filing the complaint in the first place.
“To name someone as a plaintiff without their permission is not what the rules of procedure allow,” said Paul Cassell, a University of Utah law professor and former federal judge. “You can file a class action, but the way that is done is you have named plaintiffs whom you represent and have permission to represent. You can’t drag someone into a lawsuit without their permission claiming to represent them.” …
“A lawyer should not act on behalf of a person without having been engaged by that person or authorized by a court” to represent him or her, said Burke, who is general counsel at Ray Quinney & Nebeker and handles professional ethics for the law firm. “He can’t just assume consent. He needs actual consent and authority to act on their behalf.”
Cliff Rosky, a University of Utah law professor and an Equality Utah board member, said Smay was “flagrantly in violation of ethical rules.”
No word on whether Smay got smacked by the judge or by the Utah bar for his actions, but it’s hardly a commendable action. In this case, Powell’s suit is in state court rather than federal, but it’s probably a safe bet that the Wisconsin bar sees this as an ethical problem, too. What’s more, it’s a foolish one; why add Van Orden at all if she hadn’t contacted him, except for political cover?
The rest of this is pretty much boilerplate too, right down to the Russel Ramsland analysis of voting patterns. Ramsland, recall, is the expert that signed an affidavit about Michigan voting patterns but cited cities and towns in Minnesota after apparently getting MI and MN confused. It also includes claims of massive vote switching by Dominion voting machines that William Barr debunked earlier today.
As in Georgia, though, at least this is coming to court rather than the conference room of a local Wyndham Hotel. By the looks of things, it won’t stay in court long, but at least it’s using the proper process.
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