I am surprised that Walberg is trying to stop the recall before signatures are collected. Another facet of this suit is that instead of enacting laws in the legislature they are asking a judge to "make law". Quite a switch from the party line, don't you think.

STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF LENAWEE

TIMOTHY WALBERG, Plaintiff,
LENAWEE COUNTY BOARD C ELECTION COMMISSIONERS, official capacity, and JAMES R. CARR, Defendants.

COMPLAINT FOR DECLARATORY RELIEF, INTUNCTIVE RELIEF, WRIT OF MANDAMUS AND OTHER RELIEF
Timothy Walberg ("Plaintiff), for his Complaint for Declaratory Relief, Injunctive Relief Writ of Mandamus and Other Relief, states as follows:
1. This lawsuit seeks a declaratory ruling from this Court declaring that pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution,1 the recall provisions under Michigan law (similar to term limits2 and one-year waiting period for judicial officers to run for partisan office3) are ineffective to recall a Member of Congress, and related relief to the foregoing. Since no Member of Congress in our
1 See Article VI, Clause 2 of the United States Constitution.
Article II, Section 10 of the Michigan Constitution invalidated by US Term Limits, Inc. v Thorntan, 514
US 779 (1995). f
See Article VI, Section 21 of the Michigan Constitution rendered inapplicable to Members of Congress by Op. Atty. Gen. 1943-44, No. 24417, p. 25.

nation's history has ever been recalled, if such limitations are to be imposed, they must be adopted by amending the United States Constitution itself.
TURISDICTION AND VENUE
2. Pursuant to MCL 600.601 and MCL 168.952 (6), this Court has jurisdiction over the subject matter of this action for equitable relief related to the Lenawee County Board of Election Commissioners.
3. MCR 3.305 allows the Plaintiff to seek a writ of mandamus in the circuit court.
4. Because there exists an actual controversy otherwise within the jurisdiction of this Court, the Court has subject matter jurisdiction over the Plaintiffs requests for mandamus and a declaratory judgment pursuant to MCR 2.605(A).
5. Pursuant to MCL 600.1615, MCL 600.1621, and MCL 168.952(6), venue lies in Lenawee County.
PARTIES
6. Plaintiff Timothy Walberg is the duly elected Member of Congress representing the citizens of the 7th Congressional District of the State of Michigan, with his present term of office having commenced in January, 2007 and being for a term of two (2) years pursuant to the United States Constitution.
7. Defendant Lenawee County Board of Election Commissioners (the "Commission") is the duly and legally constituted body for the purpose of determining the clarity of a recall petition filed against an elected officer serving under the authority of the Michigan Constitution, who are situated within Lenawee County, Michigan.

8. Defendant James R. Carr is a resident of Jackson County, Michigan, and is the individual who, on or about July 10, 2007, filed a recall petition against Timothy Walberg, who is a Member of Congress serving the citizens of the 7th Congressional District in Michigan.
GENERAL ALLEGATIONS
9. On or about July 10, 2007, a petition (the "Petition") was filed with the Commission to recall Timothy Walberg, a Member of Congress representing the citizens of the 7th Congressional District in Michigan. See Attachment A.
10. The Petition was filed exclusively under the provisions of the Michigan law.
11. No Member of Congress has ever been recalled from office in the history of the United States. Why? The answer is unequivocal: The United States Constitution does not provide for nor authorize the recall of United States officials such as United States Senators, Representatives to Congress, or the President or Vice-President of the United States. This is not an oversight. Recall provisions were hotly debated by the Framers, but were eventually rejected in favor of the present United States Constitution.
12. The document attached as Attachment B to this Complaint (beginning on page 5 and hereinafter referred to as the "Report for Congress") entitled "Recall of Legislators and the Removal of Members of Congress from Office" (March 20, 2003) published by the United States Congressional Research Office, demonstrates that Members of Congress are not subject to recall.
13. Article I of the United States Constitution creates a national legislature and comprehensively regulates its composition and selection. For example, Article I, Section 2 of the United States Constitution indicates that the "House of Representatives shall be composed of Members chosen every second Year by the People of the several States... ." It does not say that
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the "House of Representatives shall be composed of Members chosen every second Year by the People of the several States or earlier, if the Member is recalled pursuant to State law." In fact, the only delegation of authority to the States over congressional elections is the authority to conduct the "Times, Places, and Manner of holding Elections" but even this authority is limited by granting Congress the extraordinary power to make or alter state election laws.4 Since the authority to conduct the "Times, Places, and Manner of holding the Elections" gives States the authority to prescribe procedural mechanisms for holding congressional elections, the Michigan recall provisions, which are substantive in nature, are not a lawful grant of this authority.
14. With respect to the Tenth Amendment of the United States Constitution and the "reserved" authority of the States, the United States Supreme Court has clearly explained that determining qualifications and terms for federal offices, created within the United States Constitution, were "not part of the original powers of sovereignty that the Tenth Amendment reserved to the States," and thus whatever authority States have over the terms, qualifications and elections of federal officers must be a "delegated" authority from the United States Constitution.5 Such authority could not be a "reserved" power of the States, since the States could not "reserve" a power it did not have as part of its original sovereign authority, that is, a power relative to something that did not exist before its creation in the United State Constitution.
15. Accordingly, pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution, the recall provisions under Michigan law (similar to term limits and the one-year waiting period for judicial officers to run for
4 See Article I, Section 4 of the United States Constitution.
5 US Term Limits, Inc v Thornton, 514 US 779, 802 (1995).
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partisan office) are ineffective to recall a Member of Congress. If such limitations are to be imposed, they must be adopted by amending the United States Constitution itself.
16. On July 23, 2007 and again on August 6, 2007, the Commission met for the purpose of determining whether the Petition satisfied the requirements of MCL 168.952, i.e., whether the Petition stated clearly each reason for the proposed recall.
17. At the July 23, 2007 Commission meeting, the Plaintiff filed objections to the proposed recall proceedings (being conducted pursuant to Michigan law) on the basis that a Member of Congress may not be recalled pursuant to United States Constitution. The Plaintiff also filed his objections to the proposed recall language set forth on the Petition as failing to satisfy the clarity requirements of MCL 168.952. See Attachment C.
18. In order to allow Defendant James R. Carr the opportunity to respond to the Plaintiffs objections, the Commission ordered that briefs be filed with the Commission by August 3,2007, prior to the next scheduled meeting of August 6, 2007.
19. In accordance with the Commission's instructions, the Plaintiff filed his brief dated August 2, 2007, which conclusively demonstrated that a Member of Congress is not subject to recall. See Attachment D.
20. At its meeting dated August 6, 2007, the Commission determined that the Petition contained a clearly stated reason for the recall and approved the language of the Petition pursuant to Michigan law. See Attachment E.
21. Significantly, at its August 6, 2007 meeting, the Commission indicated that its sole authority was to determine the clarity of the Petition under Michigan law, not the "standing of this body to hear this matter," but that it did "encourage the parties to seek review of their other issues" presumably before a court of competent jurisdiction. See Attachment E, page 5.
COUNT I - DECLARATORY RELIEF
22. Plaintiff incorporates by reference the above paragraphs.
23. Timothy Walberg is a Member of Congress representing the citizens of the T Congressional District of the State of Michigan.
24. The text and structure of Article I of the United States Constitution set forth a uniform and exclusive set of qualifications for Members of Congress.
25. The ability to recall Members of Congress was expressly rejected by the Framers of the United States Constitution.
26. The ability to recall Members of Congress is prohibited by the text of the United States Constitution.
27. The ability to recall Members of Congress is not a "reserved" power of the States.
28. The States' exclusive delegation of authority over congressional elections is under the so-called "Elections Clause", and a recall provision falls outside that limited grant of authority.
29. The ability of a State to recall Members of Congress would destroy the uniformity of a national legislature.
30. The recall provisions under Michigan law constitute additional qualifications on a Member of Congress which are meaningless.
31. The Petition was filed exclusively under the provisions of Michigan law. See Attachment A.

32. As the Plaintiff demonstrated in his August 2, 2007 Brief filed with the Commission, a Member of Congress is not subject to recall. See Attachment D.
33. A declaratory judgment is an appropriate remedy in this case. The availability of declaratory judgments in Michigan is governed by MCR 2.605. The court rule provides in pertinent part:
(A) Power to Enter Declaratory Judgment.
(1) In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.
(2) For the purpose of this rule, an action is considered within the jurisdiction of a court if the court would have jurisdiction of an action on the same claim or claims in which the plaintiff sought relief other than a declaratory judgment.
34. In the present case, there is no realistic basis to dispute that the present "actual controversy" (the continuation of recall provisions under Michigan law against a Member of Congress in violation of the United States Constitution) submitted by an "interested party" (the Plaintiff), is within the jurisdiction of this Court. Therefore, the availability of a declaratory judgment in the present matter is certainly permitted by MCR 2.605.
WHEREFORE, the Plaintiff requests that this Court declare that pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution, the recall provisions under Michigan law are ineffective to recall a Member of Congress. COUNT II - PERMANENT AND PRELIMINARY INIUNCTION - DEFENDANT CARR
35. Plaintiff incorporates by reference the above paragraphs.

36. If Defendant James R. Carr were allowed to file the Petition pursuant to Michigan law, then Plaintiff Timothy Walberg would suffer irreparable injury because a Member of Congress is not subject to recall.
37. Conversely, Defendant James R. Carr would not be injured by complying with the terms of the United States Constitution.
38. Given the nature of the Plaintiffs injury, there is no adequate remedy available at law.
39. An injunction is an appropriate remedy in this case. As evidenced by the undisputed facts to date, the Defendants are willing to allow recall proceedings under Michigan law to proceed against a Member of Congress in violation of the United States Constitution. Therefore, the injunctive relief requested by Plaintiff is necessary in order to dismiss or discontinue these unlawful recall proceedings.
40. Upon information and belief, Defendant Carr is currently gathering signatures on the Petition with the intention of filing the Petition with the appropriate filing official.
WHEREFORE, the Plaintiff is entitled to an injunction precluding Defendant James R. Carr (and all persons in active concert or participation with Mr. Carr): (a) from taking the next step in the recall process under Michigan law, that is, filing the Petition with the appropriate election official; and (b) once this Court determines that a Member of Congress is not subject to recall, then from taking any further action to recall the Plaintiff as a Member of Congress.
COUNT III - MANDAMUS
41. Plaintiff incorporates by reference the above paragraphs.

42. Pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution, the recall provisions under Michigan law are ineffective to recall a Member of Congress.
43. Once it received the Petition, the Commission had a clear legal duty to discontinue or dismiss these proceedings because a Member of Congress is not subject to recall.
44. The Plaintiff has a clear legal right to a discharge of this duty by the Commission.
45. The correct decision by the Commission, that is, to dismiss or discontinue these proceedings, is a ministerial act because the law prescribes and defines the duty to be performed with such precision and certainty to leave nothing to the exercise of discretion or judgment.
46. A writ of mandamus is an appropriate remedy in this case: In Wayne County v State Treasurer, 105 Mich App 249, 251; 306 NW2d 468 (1981), the Court of Appeals outlined the well-known standard applicable to mandamus actions:
"Generally, mandamus lies only where there exists a clear legal duty incumbent upon the defendant and a clear legal right in the plaintiff to the discharge of such duty. The legal duty must usually be a specific act of a ministerial nature, although occasionally mandamus will lie though the act sought to be compelled is discretionary."
In the present case: (1) the Commission has a clear legal duty to comply with the United States Constitution; (2) the Plaintiff has a clear legal right to the discharge of this duty; and (3) this legal duty is ministerial in nature. Accordingly, the elements for a writ of mandamus are satisfied in this case.
WHEREFORE, the Plaintiff respectfully requests this Court to issue a Writ of Mandamus directing that the Commission dismiss or discontinue all proceedings relating to the Petition, and to not take action with respect to any future recall petition filed against a Member of Congress.

COUNT IV - INJUNCTION - DEFENDANT COMMISSION
47. Plaintiff incorporates by reference the above paragraphs.
48. Pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution, the recall provisions under Michigan law are ineffective to recall a Member of Congress.
49. Nonetheless, instead of dismissing or discontinuing these proceedings, on August 6, 2007 the Commission determined that the Petition satisfied the clarity requirements pursuant to Michigan law, thereby continuing recall proceedings under Michigan law which violate the United States Constitution.
50. Given the nature of the Plaintiffs injury, there is no adequate remedy at law.
51. An injunction is an appropriate remedy in this case. As evidenced by the undisputed facts to date, the Defendants are willing to allow recall proceedings under Michigan law to proceed against a Member of Congress in violation of the United States Constitution. Therefore, the injunctive relief requested by the Plaintiff is necessary in order to dismiss or discontinue these unlawful recall proceedings.
WHEREFORE, because a Member of Congress is not subject to recall, the Plaintiff respectfully requests this Court to direct the Commission to rescind any action that it has taken with respect to the Petition, to dismiss or discontinue any proceedings whatsoever relating to the Petition, and to not take any action with respect to any future recall petition filed against a Member of Congress. COUNT V * APPEAL OF CLARITY DETERMINATION UNDER MICHIGAN LAW
52. Plaintiff incorporates by reference the above paragraphs.
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53. As illustrated by the earlier counts of this Complaint, the Plaintiff seeks equitable relief from this Court to declare that pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause, the recall provisions under Michigan law are ineffective to recall a Member of Congress, and relief related to the foregoing. Consequently, this Count V of this Complaint addresses only the Michigan law aspects of these proceedings which should never be reached since the Petition should have already been invalidated and the recall proceedings dismissed by operation of one or all of the previous four counts to this Complaint.
54. At all times relevant to this Complaint, the Plaintiff has expressly objected to the Michigan recall proceedings against the Plaintiff as being in violation of the United States Constitution; however, even if a Member of Congress were subject to recall, the recall language in the Petition is insufficient pursuant to Michigan law. See Attachment C.
WHEREFORE, the Plaintiff requests that this Court reverse and overrule the sole determination made by the Commission in this matter (which was as to the clarity of the Petition), and declare that the Petition does not contain a sufficient statement of the reason for recall under Michigan law and, therefore, does not meet the requirements of Michigan law even assuming that a Member of Congress were subject to recall.
Respectfully submitted,

FOSTER, SWIFT, COLLINS & SMITH. P.C. Attorneys for Plaintiff
Dated: August 15, 2007 By:
Eric E. DosterfP41782) 313 S. Washington Square Lansing, MI 48933-2193 517-371-8100
S:\266\Doster\Walberg\Complaint. wpd
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Labels: Recall, Tim Walberg

posted by Fitzy  # 10:33 AM