Federal court denies motion to sanction Indy attorney for Trump Wisconsin lawsuit

A district court in Wisconsin has rejected a bid by Wisconsin officials to recoup attorney fees from the Indianapolis law firm of Kroger Gardis & Regas for what the court called a “meritless case” of contesting how the November 2020 general election was conducted.

Judge Brett Ludwig of the U.S. District Court for the Eastern District of Wisconsin issued the ruling Monday, finding 7th Circuit Court of Appeals precedent barred the award of attorney fees. Yet, the judge also noted that aside from precedent, Gov. Tony Evers and the Milwaukee County officials did not show an award of fees was justified.

“Perhaps this meritless case ought never to have been filed,” Ludwig wrote in Donald J. Trump v. The Wisconsin Elections Commission, et al., 2:20-cv-01785.  “And, once counsel agreed to file it, he certainly should have taken care to identify which claims warranted culling, which defendants were appropriate to sue and what remedy would be appropriate for the claims alleged.

“In the three-week flurry of proceedings that comprised this litigation, such ideal care was not taken,” Ludwig continued. “But the Court does not fault counsel for retreating from certain positions once their flaws came to light, and his overall conduct in presenting the case was professional and reasonable, given the circumstances. In the overall context, counsel acted within the bounds of objective reasonableness.”

The election lawsuit was filed Dec. 2, 2020, after Wisconsin had already certified Joe Biden had won the popular vote by more than 20,000 votes. William Bock III of Kroger Gardis & Regas represented Trump in the litigation.

After the Trump team lost in the district court and failed to convince the 7th Circuit and U.S. Supreme Court to overturn the ruling, Evers filed a motion seeking at least $145,000 in attorney fees.

Ludwig, who was nominated to the federal bench by Trump in March 2020, cited Overnite Transp. Co. v. Chicago Indust. Tire Co., 697 F. 2d 789, 792 (7th Cir.  1983), in denying the request for attorney fees. Specifically, he found the district court lacked jurisdiction to grant the request because the parties waited until after the conclusion of the appeal on the merits of the case.

He pointed out the governor, along with the mayors of Kenosha, Racine and Green Bay, did not file for attorney fees until three months after the case had ended. Since the motion for fees was not pending when the appeal ended, Overnite holds the district court lacks jurisdiction.

The Office of Gov. Evers and attorneys representing the mayors of Kenosha, Racine and Green Bay did not respond to a request for comment by IL deadline.

In a statement, Bock said, “This was hard fought litigation handled on an expedited timetable. We are grateful the district court recognized the appropriate place to hear President Trump’s Electors Clause claims was in the U.S. District Court and that our handling of the evidence on those claims was professional and appropriate.”

Speaking to the Indiana Lawyer, Bock said he was “very happy” with the district court’s ruling and was not concerned about the opposing parties filing an appeal.

“That would be throwing good money after bad to pursue this claim further,” Bock said.

Once Ludwig denied the motion for fees, he opined that even without Overnite, his ruling would still stand. He maintained that of the “battery of complaints” lodged against Bock, none rose to a level that would warrant an award of fees under 28 U.S.C. Section 1927.

The district judge held that the governor and mayors did not show that the plaintiff counsel’s conduct “materially multiplied the proceedings” in this case. Rather, the judge found Bock worked to ensure the litigation was resolved expeditiously by agreeing to an expedited hearing schedule, dropped his request to subpoena live witnesses and agreed to a set of dispositive facts.

Ludwig conceded the governor and mayors “came closest to presenting grounds for a fee award” by complaining about plaintiff counsel’s uneven handling of the case. Namely, the judge noted Bock raised and abandoned arguments haphazardly, asserted then abandoned three constitutional claims and requested varying types of unprecedented and questionable relief.

“These are not insignificant failings,” Ludwig wrote. “Ready, fire, aim is not the preferred approach when litigating constitutional claims in federal court. Nevertheless, in the overall context of his case, the Court is unable to conclude that counsel’s conduct multiplied these proceedings in an objectively unreasonable and vexatious manner sufficient to warrant a fee award.”

Bock stands by the decision to file the lawsuit, maintaining the case presented an electors clause challenge that was justifiable under the Constitution. The plaintiff’s counsel contended the “last minute” changes to Wisconsin election law deviated from the process established by the Wisconsin Legislature.

Describing the focus of the lawsuit as a “serious issue and important issue,” Bock said, regardless of which side of the political spectrum we sit on, “we don’t want the other side to make changes to the election process in the lead up to the election nor do we want the election laws to be administered in a partisan fashion.”

He pointed out that the challenge to the election in Pennsylvania — which raised similar issues to the Wisconsin case — split the U.S. Supreme Court, with the petitions for writ of certiorari falling just one vote shy of being granted.

Also, Bock contended Evers mischaracterized the lawsuit as alleging election fraud. The Indianapolis attorney said the complaint was challenging the process of the 2020 general election, although he added that the risk of fraud rises if there are no protections to the election process.

However, Ludwig wrote that while Overnite barred their motion, the mayors made persuasive arguments that an award of fees is justified under Section 1927 and 42 U.S.C. Section 1988.

“The City Movants have shown that the conduct of this litigation as to them was sufficiently unreasonable as to warrant a fee award under both Section 1927 and Section 1988,” Ludwig wrote. “These Movants note that Plaintiff and his counsel failed to develop, and indeed made no effort to present facts that would take these defendants with liability relating to the specific Electors Clause issues finally presented.”

Ludwig’s ruling comes days after a federal judge in Michigan sanctioned nine attorneys representing Trump $175,000. 

Bock said he was not worried about any penalty. Accusing Evers of using a broad brush to paint the allegations raised in the lawsuit, the attorney said the complaint did not make any charges about a foreign entity manipulating voting machines, nor did it put forth any claims about hundreds of thousands of ballots being found.

“We talked about the facts,” Bock said. “We talked about what we could prove.”

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