[conspire] Legal amusements

[Rick Moen]

Quoting Dire Red (deirdre at deirdre.net):

> I was having a look on the cases still outstanding, and came across
> this Nevada case:
> 
> https://www.democracydocket.com/state/nevada/?by_case_type=active-cases

That URL doesn't technically point to a specific legal case.
Fortunately, it happens to _at this moment_ highlight the specific case
you doubtless have in mind, Jesse Law et al. v. Judith Whitmer et al
(Law v. Whitmer)

 
> After a good chuckle, I decided to see what else the defense filed,
> and the other was a Motion to Dismiss:
> 
> https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/201123-Defs-Motiont-to-Dismiss-FILED.pdf 
> 
> So, while modern courts blend the two concepts, which leads to
> significant confusion for some people about the law, historically, one
> could bring a suit for either law or equity. What defenses you can
> bring *to this day* depends on whether one’s asked for law or equity,
> even though it may not be so obvious which is which at times if you
> don’t know the history.
> 
> Requests for injunctions are an equity claim.

It might help to distinguish the two types of remedy that can be
sought (in the United States):.

Bringing a lawsuit seeking _equitable_ relief means asking the court to
order an injunction or a court order (writ).  E.g., you want the court
to order your neighbour to give you your cow back, or stop shooting
arrows into the side of your barn.  This is the sort of remedy you file
a plea requesting when it matters that a particular thing be done or not
done, i.e., you really want Bessy your cow back specifically, and not
just her cash value.

Bringing a lawsuit seeking _legal_ relief means asking the court to
order the other guy to pay you money.  

Back in Merrie Olde England prior to 1870s reforms, the  Court of
Chancery (only) ordered equitable remedies.  All the other courts
ordered legal (monetary) remedies, and were the mainspring of English
common law, which (waving my hands a bit, here) is how equity came to be
there rarer exception, and legal remedies the norm.  In fact, in the US
legal system, there's a sort of guideline that courts _generally_ will 
not consider granting equitable relief unless there's "no adequate
remedy at law", e.g., getting Bessie back is really necessary for you to
be made whole.

The United States never had _quite_ the dramatic distinction between
courts of equity and courts of law that used to exist in England, but
the difference between the two different ways plaintiff might seek to be
made whole is crucial in the form and treatment of pleadings.

> One of the standard defenses is the doctrine of laches, meaning: did
> they delay bringing the suit unreasonably so that an equitable remedy
> is not possible?
> 
> https://en.wikipedia.org/wiki/Laches_(equity)

The logic behind avoidable delay calling into question a suit seeking an
equitable remedy, more than if it sought a legal (monetary) remedy, is
that, if you screw around for an unreasonably long time before bringing
your legal action, circumstances are likely to have changed, you might
be messing with the defenc's ability to present a case with timely
evidence and witnesses, etc., and also, if it was so vital that you get
Bessy back, why did you wait two years before filing?  Like, maybe
defendent now has moved Bessy to Australia, yet you're demanding that
she be transported back, _now_?

Thus, the Law v. Whitmer (Nevada election) case's motion to dismiss
raises the laches issue in charging plaintiffs were guilty of
'inexcusable delay' in challenging Nevada's policies and procedures.
Apparently, many months ago, Nevada's Legislature passed a statute
ordering that every state citizen be mailed a ballot by Oct. 14th.
The statute then survived multiple legal challenges in both state and
Federal court, including one by the Trump campaign.  All of those suits
were in various ways completely specious -- bring us almost to the
present, when Law et alii brought the current lawsuit on the last day
permitted to file at all, Nov. 17th, recycling junk arguments already
rejected in the previously dismissed lawsuits.  Defence bases its 
request to dismiss based on the just-mentioned fact of recycling
already-dismissed arguments (called the doctrine of issue preclusion) in
addition to laches (excessive delay).

> But in motions and rulings, you don’t see laches come up so frequently
> *as specifically referenced*. Like the recent Pennsylvania judge's
> smackdown on Trump’s lawyers:
> 
> https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Order-Granting-MTD.pdf
> 
> Back to the Nevada Motion to Dismiss, it alleges a couple of things:
> 
> 1. Privity, another term I don’t see like ever, but basically: these
> parties are so close to the same that party A losing over there
> precludes party B from bringing it up over here.
> 
> https://en.wikipedia.org/wiki/Privity#US_federal_law

Privity arises in the pleading _because_ it's an issue that must be
addressed if one pleads for dismissal on grounds of the issue preclusion
doctrine:  That doctrine bars only someone who is the same litigant as
before, or _substantively_ the same litigant as before, from re-raising
a cause of action already dismissed in an earlier case.

So, here, Jesse Law & friends are not _exactly_ the same as the Trump
Campaign or the Nevade Republican Party, but defence is arguing that
they are tantamount to being the same thing in this context.

> 2. Laches, aka undue delay, starting on p. 13.

For which objection to apply, three factors must be weighed:

1.  Did the non-moving party inexcusably delay bring the challenge?
2.  Did that delay amount to acquiescence to the allegedly wrongful thing?
3.  Was that delay prejudicial to others?

Defence argues the answer is yes to all three.  Waiting two weeks until
after Election day to object to a voting machine that had been in the
works for ages was pretty damning.  Delaying until after almost a
million voters relied on that machine arguably consented to its use.
And the remedy sought being granted _now_ would deprive almost a million
voters of a key right of citizenship, so, hell yeah, prejudicial to
others.

Defence memorably writes:  'The election process is complete; the bell
cannot be unrung.'