Established Fact
Following the voluntary withdrawal of Wisconsin Voters Alliance v. Pence — a lawsuit challenging the validity of 2020 election procedures in five states, filed in the U.S. District Court for the District of Columbia — Judge James E. Boasberg issued a show-cause order on January 7, 2021, the same day plaintiffs’ counsel filed the notice of voluntary dismissal, directing attorney Erick Kaardal to demonstrate why the court should not refer him to its Committee on Grievances for potential discipline. In a January 4 opinion denying the preliminary injunction, Boasberg had already warned that, “at the conclusion of this litigation, the Court will determine whether to issue an order to show cause,” citing what he characterized as a “serious lack of good faith” and conduct that rendered it “difficult to believe that the suit is meant seriously.” Finding Kaardal’s response to the show-cause order insufficient to “allay the Court’s concerns regarding potential bad faith,” Boasberg formally referred the matter to the Committee on Grievances on February 19, 2021, reasoning that “[w]hen any counsel seeks to target processes at the heart of our democracy, the Committee may well conclude that they are required to act with far more diligence and good faith than existed here.” The D.C. Circuit dismissed Kaardal’s appeal for lack of jurisdiction, characterizing the referral as a “post-dismissal order” that “merely initiated disciplinary proceedings” rather than a final order fixing counsel’s rights. The issuance of a show-cause order on the same day as — and after — the voluntary dismissal, when no further procedural harm to the court’s docket remained, is consistent with a deterrent purpose; counsel was required to retain separate defense counsel and respond to the referral proceeding despite the underlying case having been terminated.
Citations
Wisconsin Voters Alliance v. PenceWisconsin Voters Alliance v. Pence, No. 1:20-cv-3791 (D.D.C.), Minute Order (Jan. 7, 2021) (“Plaintiffs’ counsel shall show cause why the court should not refer him to the Committee on Grievances for all of the reasons discussed in its recent Memorandum Opinion”), as described in: Fed. Judicial Ctr., Unsuccessful Suit to Require State Legislatures to Certify Presidential Election ResultsUnsuccessful Suit to Require State Legislatures to Certify Presidential Election Results (EE-DC-1-20-cv-3791), https://www.fjc.gov/sites/default/files/materials/10/EE-DC-1-20-cv-3791-WVA.pdf; Kevin Featherly, Judge Orders Kaardal to Show CauseJudge Orders Kaardal to Show Cause, Minn. Lawyer (Jan. 7, 2021), https://minnlawyer.com/2021/01/07/federal-judge-dangles-sanctions-against-kaardal/ .
Wisconsin Voters Alliance v. PenceWisconsin Voters Alliance v. Pence, 514 F. Supp. 3d 117, 122–23 (D.D.C. Jan. 4, 2021) (D.E. 10), full opinion at https://electioncases.osu.edu/wp-content/uploads/2020/12/WVA-v-Pence-Doc10.pdf; see alsosee also Michigan AG’s office copy, https://www.michigan.gov/-/media/Project/Websites/AG/releases/2021/january/WVA_v_Pence_Memorandum_Opinion.pdfhttps://www.michigan.gov/-/media/Project/Websites/AG/releases/2021/january/WVA_v_Pence_Memorandum_Opinion.pdf.
Wisconsin Voters Alliance v. PenceWisconsin Voters Alliance v. Pence, No. 1:20-cv-3791 (D.D.C. Feb. 19, 2021) (D.E. 23), 2021 WL 686359; Josh Gerstein, Lawyer Who Brought Election Suit Referred for Possible DisciplineLawyer Who Brought Election Suit Referred for Possible Discipline, Politico (Feb. 19, 2021), https://www.politico.com/news/2021/02/19/lawyer-election-suit-discipline-470369 (quoting referral order and Boasberg’s statement that Kaardal had “not sufficiently allayed the Court’s concerns regarding potential bad faith”).
Wisconsin Voters Alliance v. HarrisWisconsin Voters Alliance v. Harris, 28 F.4th 1282, 1283 (D.C. Cir. 2022) (“In a post-dismissal order cataloging the suit’s ‘numerous shortcomings,’ the district court referred plaintiffs’ counsel, Kaardal, to the Committee on Grievances for possible discipline. . . . [T]he district court’s referral is not a final order. Rather than fixing Kaardal’s rights and liabilities, the challenged order merely initiated disciplinary proceedings.”), available at https://law.justia.com/cases/federal/appellate-courts/cadc/21-5056/21-5056-2022-03-22.html.
Defense representation confirmed in Politico, suprasupra n.3 (identifying Justin Flint of Washington as representing Kaardal “in the discipline fight”). The deterrence characterization is the author’s analytical inference; no court has so held.