President Donald Trump has petulantly refused to accept the results of the American 2020 presidential election. His campaign and the Republican Party have filed almost a dozen lawsuits in Nevada, Michigan, Pennsylvania, and Georgia, with more on the way. His aggressive legal action—actions that are being described as ‘entirely without merit’ and ‘flailing’—will almost assuredly not affect the election’s outcome. They remain concerning because Trump’s moves are desperate and often appear to have no basis in fact. They are, in short, a textbook definition of vexatious litigation: frivolous lawsuits devoid of factual or legal merit. The suits are ‘politics disguised as a legal strategy’, as Kim Wehle points up in The Atlantic. A legal device, the bill of peace, has been specifically designed to deal with this kind of litigation.
Tackling lawsuits piecemeal takes time and energy, which are better spent preparing to govern or actually governing. Mr. Trump’s attacks target the President-elect’s victory, but the cost of defending state elections falls to individual states. The President is burning state cash, and he’s doing it while Congress hems and haws about a stimulus bill that could support state spending. The tactic sows discontent and further hampers states’ ability to respond to the pandemic.
A single, unified challenge to the election results seems to me like the best compromise. Fortunately, American law maintains a procedure that can force troublesome litigants into a single trial: the bill of peace. I explore the concept here and then show how it applies to Mr. Trump’s lawsuits.
The bill of peace
The bill of peace is an old device in Canadian and English jurisdictions; it is, however, current in the United States. The bill flows from an equity court’s injunctive power.
Bills of peace end judicial conflict by bringing all actions from all courts into a single superior court. They are akin to defensive class actions. That one court collects and tries all the related issues, settles them, and issues whatever orders it believes are necessary. An order can include a perpetual injunction that prevents a plaintiff from filing multiple actions on the same subject.
The bill originates, as far as I can tell, in eighteenth-century England. The House of Lords in Earl of Bath v Sherwin upheld a bill of peace granted after five separate trials rejected property claims made by the same plaintiffs against the same defendants. The lords in this case said that: ‘it was highly reasonable that a Court of Equity should interpose, and obviate the mischief by granting a perpetual injunction, after the right and only matter in question had been tried so often and fairly settled by so many solemn and concurring verdicts’. Translation: a bill of peace settles judicial conflict that can otherwise be brought again and again to keep the same issues alive in the courts.
In earlier American cases, for example, the bill was used in public law to restrain the state from collecting illegal taxes from a group of people. Courts in the 1890s even used the bill to stop the enforcement of state laws. The logic here was that the bill of peace resulted in an order that protected a wide swath the public or required a swath of the public to cease litigation against an individual.
American courts and legislatures have given us straightforward tests for the bill of peace. There is a general test for equitable relief, such as an injunction. The Michigan Court of Appeal cites the test in Nat’l Church Residences v. Porter: ‘Equitable relief is generally appropriate “when (1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury.”’ Georgia’s state code provides a specific test for granting a bill of peace at section 23-3-110:
(a) It being the interest of this state that there shall be an end of litigation, equity will entertain a bill of peace:
(1) To confirm some right which has been previously satisfactorily established by more than one legal trial and is likely to be litigated again;
(2) To avoid a multiplicity of actions by establishing a right, in favor of or against several persons, which is likely to be the subject of legal controversy; or
(3) In other similar cases.
(b) As ancillary to this jurisdiction, equity will grant perpetual injunctions.
The Michigan Court of Appeals in Hooker Chems & Plastics Corp. v A.G. recognized that a bill of peace ‘will lie after repeated trials at law and satisfactory verdicts to have an injunction against further litigation.’ The Federal Courts’ civil procedure rules also allow for bills of peace at Rule 23, which I quote as an appendix.
These authorities give us some sense of the bill’s use; their application to Mr. Trump’s actual and threatened litigation is best understood with reference to Georgia’s rules. Mr. Trump has threatened litigation beginning on Monday in multiple states to contest the election results in those states. A Michigan court, a district federal court, and a Georgia court have already decided questions related to this issue. These facts beg for a bill of peace because Mr. Trump is litigating the same issues.
Mr. Trump’s legal challenges are attractive targets for a bill of peace because his tactics are transparent. USA Today documented his history of litigation across three decades. Mr. Trump has been involved in 4 095 cases, of which he initiated 2 121 as plaintiff. Litigation is expected from someone with Mr. Trump’s public profile. The New York Times and other media outlets have, however, noted up Trump’s litigation tactics. The President bullies companies, like lending banks, into a cost-benefit analysis by threatening and making good on litigation. This same tactic may be at work in Mr. Trump’s election litigation, although a simpler reason also exists: election litigation fundraising efforts are being used to fund litigation and pay off campaign expenses.
Michigan’s test for an injunction, which is laid down in Nat’l Church, buttons these facts up. The interest of justice in this case is a policy interest: the presidential election results should be confirmed as swiftly as possible. This sentence is normally a platitude; Mr. Trump has made confirmed results a national emergency by questioning electoral officials’ bona fides. He does so, however, for murky reasons. Are Trump campaign election challenges earnest efforts or efforts to cover debt? The election cases to date and Mr. Trump’s litigation history don’t give a clear answer.
Law has a tough time responding in a systematic way to sweeping litigation across state lines on minuscule electoral improprieties under-girded by an unproven belief that elections fraud occurred. Legislation and common law allow suits to be filed whenever a right is allegedly infringed. Mr. Trump alleges, and the courts begin moving. One remedy for multiple trials on the same or similar issues is a bill of peace. Its origin in equity cuts through the legal machine by forcing one trial of all the issues. An injunction to this effect is an efficient vehicle that short-circuits prolonged litigation.
The immanent danger of destabilizing the presidential election’s results, possibly fomenting violence, and doing these things during a pandemic all point to irreparable harm on a national scale.
Mr. Trump’s present suits will have to be examined one-by-one to determine whether each fits the criteria for frivolity, which would indicate a vexatious pattern that could be resolved with a bill of peace.
The public information about these suits does suggest that Mr. Trump’s lawyers are carpet bombing to find irregularities by judicial fiat. A court can order reams of evidence to settle a case. This level of scrutiny is bound to uncover some errors, and a demagogue like Mr. Trump might magnify these trifles to threaten the election’s legitimacy.
The above is not, of course, an exhaustive review of this subject. It does, however, point to some means of short-circuiting Mr. Trump’s strategy. To be clear, that strategy has not as yet yielded substantial fruit. If Mr. Trump were able to bring a meaningful case before the courts, he deserves his day. A bill of peace would still give him this chance to plead his legal case. It simply brings all the questions before a single court. Which court is a post for another day, or, perhaps, for a licensed American attorney.
- Allstate Ins. Co. v. Hill, 1962 Ga LEXIS 522 (Supreme Court of Georgia 1962).
- Bath (Earl of) v Sherwin, 4 Bro. P.C. 373 (UK HL 1709).
- Bray, Samuel L. ‘Multiple Chancellors: Reforming the National Injunction’. Harvard Law Review 131, no. December (2017): 418.
- Dykun v. Odishaw, 2001 ABCA 204 (n.d.).
- Hooker Chems. & Plastic Corp. v. AG, 100 Mich. App. 203 (Court of Appeals of Michigan 1980).
- McManamon, Mary Brigid. ‘Felix Frankfurter: The Architect of “Our Federalism”’. Georgia Law Review 27, no. Spring (1993): 697.
- Moreton Rolleston, Jr., Living Trust v. Kennedy, 2004 Ga LEXIS 16 (Supreme Court of Georgia 2004).
- Nat’l Church Residences v. Porter, 2017 Mich. App LEXIS 1007 (Court of Appeals of Michigan 2017).
- Official Code of Georgia (n.d.).
- Rodgers v. Bryant, 2019 U.S. App. LEXCIS 33173 (United States Court of Appeals for the Eight Circuit 2019).
- Sohoni, Mila. ‘The Lost History of the “Universal” Injunction’. Harvard Law Review 133, no. January (2020): 920.
- USCS Federal Rules of Civil Procedure.
Federal Rules of Civil Procedure, Rule 23
The rule creates the power to issue a bill of peace
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.