12/7/2023 1:55 PM ® 5 2 € 5 3 ° zo e Ss x G 3 oD FILED Received for STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND THE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, vs. DAIRE RENDON Defendant. PEOPLE OF THE STATE OF MICHIGAN SPECIAL PROSECUTOR By: _ D.J, HiLson (P5726) Tim Maar (P48691) HEATHER BLoomauisr (P80117) 990 Terrace Street, 5" Floor Muskegon, MI. 49442 (231) 724-6435 HilsonDa@co.muskegon.mi.us MaatTi@co.muskegon.mni.us BloomquistHe@co.muskegon.mi.us File No. 2023-285730-FH Hon, JEFFERY 8. MATIS CAMILLA BARKOVIC (P78254) Attorney for Defendant 25805 Harper Avenue St. Clair Shores, MI 48081 (586) 773-2120 PLAINTIFF'S ANSWER TO DEFENDANI’S MOTION TO QUASH/DISMISS THE, INDICTMENT NOW COME the People of the State of Michigan, by and through their attorney, D.J. Hilson, Special Prosecuting Attomey, and oppose Defendant's Motion to Quash/Dismiss the on the basis of legislative immunity and evidentiary privilege because the Defendant is not entitled to legislative immunity where her actions are not privileged under the Speech or Debate Clause because they are not within the legislative sphere and for the reasons more further articulated in the attached brief in opposition filed contemporaneously hereto. Dated: December 7] , 2023 Respectfully submitted, SPECIAL PROSECUTOR &STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND. ‘THE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, vs. DAIRE RENDON Defendant. PEOPLE OF THE STATE OF MICHIGAN SPECIAL PROSECUTOR By: DJ. Hison (P7726) ‘TIMMAAr (P48691) HEATHER BLOOMQUIST (P80117) File No. 2023-285730-FH Hon, JEFFERY $. MATIS CAMILLA BARKOVIC (P78254) Attomey for Defendant 25805 Harper Avenue St. Clair Shores, MI 48081 (586) 773-2120 990 Terrace Street, 5" Floor Muskegon, MI 49442 (231) 724-6435 HilsonDa@co.muskegon.mius MaatTi@co.muskegon.mi.us BloomquistHe@co.muskegon.mi.us PLAINTIFF'S BRIEF IN OPPOSITION OF DEFENDANT’S MOTION TO QUASH/DISMISS THE INDICTMENT NOW COME the People of the State of Michigan, by and through their attomey, D.J. Hilson, Special Prosecuting Attorney, and state the following in opposition to Defendant's motion to quash/dismiss the indictment on the basis of legislative immunity. STATEMENT OF THE FACTS Following the 2020 Presidential Election, Co-Defendants Stefanie Lambert and Matthew DePerno engaged in a plan to obtain access to voting tabulators throughout the State in an effortto demonstrate there was fraud in the election, As part of this plan, Co-Defendant Lambert employed Michael Lynch as a Private Investigator. On January 13, 2020, Defendant Lambert asked private investigator Michael Lynch to obtain the phone number for Daire Rendon out of Lake City, and subsequently, he provided the phone number to Defendant Lambert. Defendant Rendon was a State Representative that lived in Lake City and following her contact with Lambert, she began calling multiple clerks informing them that they were conducting an “investigation” and that they would like the clerks to cooperate by turning over their tabulators to investigators. (Transcript Vol I, 03/06/23 [Vol 1] p 124-144.) There was no Secretary of State investigation. There was no Attomey General investigation. ‘There was no official legislative investigation into the tabulators in the municipalities in which Defendant was asking for possession of the machines. (Vol Lat 145.) According to Lynch, it was Lambert’s inquiry, and Lambert was using Defendant to “connect with like-minded individuals to obtain election assets” or equipment (Vol II at 45~ 46). Specifically, in January or February 2021, Defendant reached out to Walter “John” Bawol Jt, the Richfield Township Supervisor asking for him to provide the voting tabulators to be forensically studied, and it was implied that Defendant meant the Legislature or some arm of the State was going to do the investigation to make sure that the machines were not tampered with (03/0723 Volume II [Vol II], p 13-16). Bawol contacted Greg Watt the township clerk for Richfield, and they worked with Defendant to schedule the pick-up of the machines the next day. Rendon was not present when the machines were provided to Lynch, (Vol I at 18-20). When the machines were gone longer than they were originally told, Bawol contacted Defendant to ask where the machines were and why they were not returned, Defendant told him that they would be back in another couple of days, which did not happen. Bawol contacted Defendant multiple times,and eventually after three to four weeks after they had originally been promised to be returned, Defendant told Bawol that the machines were being brought back. (Vol II at 23-24.) Similarly, Watt also called Defendant to ask for the machines to be returned, and Defendant was “very unhelpful”. She did not know where the machines were and why they had not been retumed. Defendant told Watt that she was not the person to be talking to about that. (Vol Il at 38-39.) Watt indicated that the tabulators were returned a couple of weeks after his call to Defendant Rendon (Vol IL at 39), Bawol and Watt both would not have provided the tabulators to just anyone, but they relied on Defendant’s status as a member of the legislature and her representations that induced them to turn over possession of the machines (Vol II at 27; 44). Roscommon Township Clerk Carie Milburn knew Defendant through family relationships and though local events, Following the 2020 Election, Milburn received a phone call on her cell phone from Defendant asking for access to her tabulators, Specifically, Defendant told Milbum that she wanted access to the tabulators because an attomey was in town that weekend and they were looking for discrepancies. Defendant pushed for Milburn to provide access that Saturday or Sunday, Milburn refused and said she would have to contact her township board for authorization, and Defendant then responded that it could only happen this weekend, Milburn’s supervisor was then called by Defendant and Milbum still refused fo turn the machines over without any further township authorization, (Vol II at 48-50.) Denton Township Clerk Carol Asher was also called on her cell phone by Defendant on a Saturday requesting that Asher turn over the tabulators. Asher emphatically told Defendant, “No,” (Vol II at 56-58.) Markey Township Clerk Sheryl Tussey also received a call from Defendant on her cell phone requesting that Tussey provide the Markey Township tabulator to Defendant's “team” so they could take it for a forensic audit. Tussey refused. (Vol II at 65-66.)Lake Township Clerk Korinda Winkelmann was also contacted by Defendant with a request that Winkelmann provide possession of the Lake Township tabulator to Defendant. Winkelmann knew Defendant through events and within the community. Defendant contacted Winkelmann and asked her whether “it was okay if she had her attorney friend contact me for the use of one of my tabulators.” The attomey friend was “Michael Lynch”. (Vol IL at 170-172.) On a weekend in late March 2021, Lynch came and took a tabulator, poll book, and printer from Winkelmann, and he provided a hand-written receipt for the items he took (Vol Il 173-175). Winkelmann was told to keep what happened secret by Lynch (Vol II at 181). Winkelmann’s items were not retumed for over six months and they were provided on separate dates for the various pieces of equipment (Vol II at 183-184). Michelle Stevenson Roscommon County Clerk was contacted on a Saturday night by her ‘mother-in-law asking if Stevenson would talk to Defendant Rendon. Stevenson agreed and spoke to Defendant Rendon. Defendant Rendon told Stevenson that “representatives” are doing an investigation into the election and she wanted to take voting tabulators from Roscommon County as part of that investigation. (Vol III at 119-120). Stevenson provided the tabulator and allowed her Election Management System to be copied (Vol III at 123-124). Subsequently, on the date the tabulator was provided by Stevenson to Lynch, Stevenson spoke to Defendant on the phone and expressed her nervousness about her involvement with turning over the tabulator and Stevenson's concems over the legitimacy of what was happening. Defendant told Stevenson not to worry because her name would not be mentioned. (Vol III at 126; 128.) Stevenson told Lynch that the items had to be retumed before she left on vacation the following week. ‘The items were not returned to her in that timeframe. She reached out to Lynch and to Defendant to be instant ongetting them back. Defendant simply told Stevenson that she was doing a “good thing” letting them use the equipment. The items were returned weeks later. (Vol [II at 130-131.) ‘The Defendant is charged in the indictment with undue possession of a ballot box or voting machine, MCL 750.157a and MCL, 168,932(b); and False Pretenses $1000 to $20,000, MCL. 750.218(4)(a). Its this indictment that Defendant now moves to quash. LAW AND ARGUMENT Defendant asserts that the charges against her should be dismissed for two reasons: first, that she asserts that she has absolute immunity under the Speech or Debate Clause; and second, that the evidence presented to the grand jury was subject to the evidentiary privilege established by the Speech and Debate Clause. The People oppose both arguments for the reason that Defendant’s actions are clearly outside the Legislative Sphere as further articulated herein, The Speech or Debate Clause Article 4 § 11 of the Michigan Constitution — commonly referred to as the Speech or Debate Clause ~ provides: Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof, They shall not be questioned in any other place for any speech in either house From this Clause, “state legislators enjoy a broad-based immunity for the enactment of legislation and for other acts committed within the sphere of legislative activity.” Wilkins v Gagliardi, 219 Mich App 260, 268; 556 NW2d 171 (1996). The conduct is only protected if it falls within the legislative sphere. Id. “Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized.” Hutchinson v Proxmire, 443 US 111, 127; 99S Ct2675, 2684; 61 L.Ed 2d 411 (1979). While the plain language of the Clause appears to only apply to civil actions, the United States Supreme Court and the Michigan Court of Appeals have applied the Clause in criminal prosecutions. Courser, 326 Mich App at 308 citing Eastland v United States Servicemen's Fund, 421 US 491, 503; 95 SCt 1813; 44 LEd2d 324 (1975), ‘The heart of the Speech or Debate Clause is that speech or debate in either House is immune, and this conduct clearly falls within the legislative sphere. To be within the legislative sphere the act must “be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v United States, 408 US 606, 625; 92 $ Ct 2614, 2627; 33 L Ed 2d 583 (1972). While Defendant is correct that the Clause is to be broadly construed (Defendant's brief, p 5), the full instruction from the United States Supreme Court illustrates that the broad construction is not limitless. The purpose of the Speech or Debate Clause not to make Members of Congress “super-citizens, immune fiom criminal responsibility.” United States v Brewster, 408 US 501, 516; 92 § Ct 2531, 2539; 33 L Ed 2d 507 (1972). [The Clause] should not be, and has not been, read to make members of Congress into a special class of citizens protected from suit (or prosecution) arising out of any activity that could assist in the performance of their official duties. After all, virtually anything that a member of Congress does could be said to relate, more or less directly, to official business (e.g., causing an accident when speeding to attend a constituent’s dinner party). And although any suit or prosecution against a member of Congress could improperly influence the member in the conduct of official duties, the Clause does not protect against all such intrusions. The Supreme Court's jurisprudence indicates that the Clause’s protection is limited to the conduct | The United States Constitution has a substantially similar Speech or Debate Clause, and Michigan Courts have held that the two should be similarly construed. Cotton v Banks, 310 Mich-App 104, 112; 872 NW2d 1 (2015); People v Courser, 326 Mich App 298, 306; 926 NW2d 299 (2018). Thus, looking at federal cases can help guide the courts in whether the privilege applies.of official business of the member's chamber. Other activities by members are “political” rather than “legislative,” however important they may be. In other words, “Speech or Debate” has been interpreted broadly to encompass voting, issuing reports, and other formal activity, but the phrase “in either House” that immediately follows “Speech or Debate” has limited the protection to official conduct. [Bastien v Office of Senator Ben Nighthorse Campbell, 390 F3d 1301, 1306-07 (10 CA 2004).] Formal investigation by the Legislative body, e.g. committee hearings, subpoenas, or the like, is within the legislative sphere, however, there is a split of opinion by the federal circuits as to whether individual independent fact-finding efforts by a Legislator are within the legislative sphere. See and compare Bastien, 390 F3d 1301, 1316 (10CA 2004), cert denied, 546 U.S. 926 (2005) (holding that such informal investigations are not protected legislative activity), with Gov't of Virgin Islands v Lee, 775 F.2d 514, 521 (3 CA. 1985) (holding that informal field investigations may be protected under certain circumstances where they relate to past legislative acts and nevertheless satisfy the Gravel, 408 US at 625 test) In Bastien, 390 F3d at 1316, the 10" Circuit held, “The [United States Supreme] Court's discussions in its opinions of the importance of information gathering is for the purpose of establishing that such activity is a proper congressional function and, when conducted by a committee, should be treated just as voting and debating legislation. To extend protection to informal information gathering—either personally by a member of Congress ot by congressional aides—would be the equivalent of extending Speech or Debate Clause immunity to debates before local radio stations or Rotary Clubs.” ‘The United States Supreme Court has provided guidance for what conduct does not fall into the legislative sphere given the multifaceted nature of the position as Legislator. The Clause 2 Defendant relies upon Lee in her brief; however, Defendant fails to inform the Court that there is a split of federal opinion on whether informal, individual investigations are protected. See and compare Bastien, 300 F3d at 1316.“provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction.” Gravel v United States, 408 US 606, 622; 92 § CL.2614, 2627; 33 L Ed 2d 583 (1972) (emphasis added). “[T}he making of appointments with Government agen assistance in securing Government contracts, preparing so-called ‘news letters” to constituents, news releases, and speeches delivered outside the Congress” do not fall within the legislative sphere and are not protected by the Speech or Debate Clause, Unived States v Brewster, 408 US S01, 512-13; 92 S Ct 2531; 33 L Ed 2d 507 (1972). These activities are considered “political” in nature rather than legislative. Jd. Political acts are not within the legislative sphere. Bastien, 390 F3d at 1315 (“The expression summarizing this proposition is that the Clause protects only ‘legislative,’ not ‘political,’ acts. See Brewster, 408 US at 512; 92 SCt 2531."), Promises to act in the future — even if itis a promise to act in the legislative sphere is not legislative act, United States v Helstoski, 442 US 477, 490; 99 S Ct 2432, 2440; 61 L Ed 2d 12 (1979) (“A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.” Likewise, a promise to introduce a bill is not a legislative act.”) Of particular import to the case at hand, communications with the executive branch by a Legislator does not fall within the legislative sphere. “Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.” Gravel, 408 US at 625; 92 § Ct at 2627. The Supreme Court has repeatedly stated that the Speech or Debate Clause does not immunize efforts by members of the Legislature to influence the acts of the Executive Branch. See, e.g. Doe v MeMillan, 412 US 306, 313; 93 SCt 2018, 2025; 36 L Ed 2d 912 (1973); Gravel, 408 US at 625;92 SCt at 2627; Brewster, 408 US at 512; 92 SCt at 2537; and United States v Johnson, 383 US 169, 172; 86 SCt 749, 751; 15 LEd 2d 681 (1966) (“No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process.”) ‘Our Constitution expressly provides that a county clerk is an executive officer as well as a judicial officer. Lapeer Cnty. Clerk v Lapeer Cir Ct, 469 Mich 146, 161; 665 NW2d 452 (2003). Pursuant to MCL 168.21, “The secretary of state shall be the chief election officer of the state and. shall have supervisory control over local election offic sin the performance of their duties under the provisions of this act.” And, “the Legislature [has] granted the Secretary a broad measure of discretion in conducting and supervising elections.” Davis v Secretary of State, 333 Mich App 588, 598; 963 NW2d 653 (2020). Our Constitution expressly states that the Secretary of State is part of the Executive Branch. Const 1963, art. 5, § 21. Thus, election clerks at the county and township level are executive branch officials given that their actions are directly overseen by the Secretary of State. Sharp v Genesee Cnty. Election Comm'n, 145 Mich App 200, 205; 377 NW2d 389 (1985). In this case, Defendant asserts that her actions of contacting local election clerks to ask them to tum over their voting tabulators to other civilians falls within the legislative sphere. Clearly the speech at issue in this case is not speech that occurred within either House, and thus, the inquiry is whether Defendant’s calls to clerks and the contents within those calls are within the legislative sphere, These calls were not “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legistation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel , 408 US at 625. 9‘There were no facts ascertained in her communications with the clerks that would be of assistance to Defendant her legislative duties. Rather than be a part of her legislative acts, her communications were to induce the action of executive officials in a certain manner, which is clearly outside the scope of the legislative sphere. McMillan, 412 US at 313; Gravel, 408 US at 625; 92 SCt at 2627; Brewster, 408 US at 512; 92 SCt at 2537; and Johnson, 383 US at 172; 86 sussion SCt at 751. Her cajoling or extorting of these clerks is not privileged. Thus, the dis regarding her privilege against prosecution and evidentiary privilege should end here. Even more, her words were a threat to the property of another, ie the government offices that owned the machines, and her requesting that physical possession of a secure device be removed ftom the government office and placed into the hands of civilians is not a legislative act. Gravel, 408 US at 622. This matter is similar to that addressed in Gravel. In Gravel, supra, a Senator published classified documents without any formal authorization to the public. The Supreme Court held that “private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence . ., We cannot but conclude that the Senator's arrangements with Beacon Press were not part and parcel of the legislative process.” Gravel, 408 US 625-626. Similarly, here, there was dissemination of physical machines to the public through the actions of the Defendant to Michael Lynch and then to others. Thus, by analogy, the actions by Defendant are not within the legislative sphere because literally the devices were removed completely fiom the governmental sphere, The Defendant did not ask that the tabulators be brought to Congress or some other secure location, rather she asked that they be released to unauthorized civilians, i.e. the 10public, similarly to the unauthorized dissemination of the classified documents in Gravel. This is not integral to the deliberative or communitive process, Further, Defendant relies upon In re Sealed Case, 80 F 4 355 (DC CA 2023) for the proposition that the Defendant’s informal factfinding is privileged. However, her reliance on this is misplaced. In re Sealed Case, specifically r cted an argument that any and all communications about facts by a member of Congress with a third party are privileged. d. at 370n 11. Even more, while certain informal factfinding might fit the definition of actions within the legislative sphere, the ultimate question is whether the action meets the standard set forth by Gravel, supra. Of particular note, the case expressly states that the acquisition of documents, which is a form of informal factfinding, is nota legislative act. d. (“This necessarily entails that the acquisition of documents—a form of informal factfinding—was not a legislative act. Gravel pokes a substantial hole in Representative Perry's privilege category.”) Similarly, here, the acquisition of these tabulators is not a legislative act. While Defendant used the word “investigation” to convince the clerks to relinquish over possession, this was not a Congressional investigation or an informal investigation by Defendant, it was an auspice to induce actions and not to gather fuets from the clerks. ‘There was no official action by the House of Representatives that authorized a formal investigation into the voting tabulators, ‘There was no committee that was formed that involved the Defendant that would be engaging in legislative functions surrounding these machines, ‘There were no subpoenas or other formal investigatory mechanisms employed by Defendant to facilitate the handing over of tabulators. Rather, it was Lambert who solicited Defendant to act as a conduit for Lambert. Further, there is no evidence that Defendants Lambert and DePerno ever conveyed any “results” from the testing of the machines to Defendant Rendon that was ever used for any legislative ipurpose. And, as noted, supra, the acts of Defendant are not integral to the legislative process because the Defendant was not obtaining facts from the clerks, and rather, it was an effort to influence the actions of the Executive Branch, This is not factfinding or investigation. ‘This is “cajoling” or “extorting” the clerks to act, clearly outside the scope of the Speech or Debate Clause no matter how it is phrased. McMillan, 412 US at 313; Gravel, 408 US at 625; 92 SCt at 2627; Brewster, 408 US at 512; 92 SCt at 2537; and Johnson, 383 US at 172; 86 SCt at 751. CONCLUSION ‘Thus, the Defendant is not entitled to the claimed protections afforded by the Speech or Debate Clause, Defendant is not entitled to legislative immunity against prosecution nor was the evidence presented cloaked in evidentiary privilege, where her actions and statements are clearly outside of the legislative sphere. Therefore, the Defendant’s Motion to Quash should be denied. Respectfully submitted, SPECIAL PROSECUTOR & MUSKEGON COUNTY PROSECUTOR Afforney for Plaintiff, Dated: December ele 2023 c BUSINESS ADDRESS & TELEPHONE: Hall of Justice, Fifth Floor 990 Terrace Street Muskegon, MI 49442 (231) 724-6435, 12