Petition for Writ of Certiorari — Clifford James Frost, Jr., Petitioner v. Dana Nessel, Attorney General of Michigan

NO. _________

In the

Supreme Court of the United States

CLIFFORD JAMES FROST, JR.,

Petitioner,

v.

DANA NESSEL,

IN HER OFFICIAL CAPACITY AS ATTORNEY

GENERAL OF THE STATE OF MICHIGAN,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kevin D. Kijewski

KDK LAW

950 East Maple Road

Suite 204

Birmingham, MI 48009

(248) 971-0476

kevin@kdklawoffice.com

Edward F. Kickham III

Counsel of Record

KICKHAM HANLEY PLLC

40950 Woodward Ave., Suite 306

Bloomfield Hills, MI 48304

(248) 544-1500

ekickhamjr@kickhamhanley.com

July 16, 2025

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Does the “bad faith” exception to Younger preemption require the plaintiff to show that he or she

has been subject to multiple criminal prosecutions as

a prerequisite to proving that a prosecution has been

undertaken in bad faith without hope of obtaining a

valid conviction, or can a single criminal prosecution

be sufficient?

ii

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Sixth Circuit

No. 24-1132

Clifford James Frost, Jr., Plaintiff-Appellant, v.

Dana Nessel, Defendant-Appellee.

Opinion: April 17, 2025

_________________

U.S. District Court, Western District of Michigan

Case No. 1:23-cv-1226

Clifford James Frost, Jr., Plaintiff, v.

Dana Nessel, Defendant.

Order and Judgment: January 18, 2024

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

STATEMENT OF THE CASE .................................... 3

I.

Introduction ...................................................... 3

II. Factual and Legal Background ....................... 9

A. The Alleged Basis for the State

Prosecution.................................................. 9

B. The Michigan Election Statutes at

Issue .......................................................... 10

C. The Applicable Federal Election

Statutes ..................................................... 11

D. The Electors’ Certificate Could Not Be

a Forgery Because the Certificate Did

Not Purport to Be Something It Was

Not ............................................................. 15

E. The Electors’ Certificate Could Not

Constitute a Crime Because as a

Matter of Law It Could Never Have

Achieved the Purported Goal of

Overturning the Election ......................... 18

III. Procedural History ......................................... 20

iv

TABLE OF CONTENTS – Continued

Page

A. Frost Moved Michigan’s 54-A District

Court to Dismiss the Indictment

Against Frost for Failure to State a

Claim, But the 54-A District Court

Denied Frost’s Motion on Incorrect

Procedural Grounds Without Reaching

the Motion’s Merits ................................... 20

B. The Proceedings in the Western

District of Michigan .................................. 20

C. The Proceedings in the Sixth Circuit ....... 22

REASONS FOR GRANTING THE PETITION ....... 23

I.

INTRODUCTION ................................................ 23

II. YOUNGER ABSTENTION .................................... 25

CONCLUSION AND RELIEF REQUESTED ......... 32

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Sixth Circuit (April 17, 2025)............................. 1a

Order, U.S. District Court for the Western

District of Michigan, Southern Division

(January 18, 2024)............................................ 21a

Judgment, U.S. Court of Appeals for the

Sixth Circuit (April 17, 2025)........................... 34a

v

TABLE OF CONTENTS – Continued

Page

STATUTORY PROVISIONS

Relevant Statutory Provisions ............................... 36a

U.S. Const. amend. XIV, § 1 ............................ 36a

3 U.S.C. § 5 ....................................................... 36a

3 U.S.C. § 6 ....................................................... 37a

3 U.S.C. § 15 ..................................................... 38a

42 U.S.C. § 1983 ............................................... 41a

MCL § 168.42 .................................................... 42a

MCL § 168.45 .................................................... 43a

MCL § 168.46 .................................................... 43a

MCL § 168.47 .................................................... 44a

CASE DOCUMENTS

Hearing on the Motion for Summary Disposition,

State of Michigan, 54-A District Court

Criminal Division (September 14, 2023) ......... 46a

Affidavit of Probable Cause and Support of

Complaint (July 18, 2023) ................................ 60a

Criminal Complaint

(December 14, 2020) ......................................... 82a

Michigan Certificate of Ascertainment of the

Electors (November 23, 2020) .......................... 87a

vi

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Bush v. Palm Beach County Canvassing Bd.,

531 U.S. 70; 121 S. Ct. 471 (2000) .................... 12

Doe v. University of Kentucky,

860 F.3d 365 (6th Cir. 2017) ............. 4, 21, 25, 31

Dombrowski v. Pfister,

380 U.S. 479 (1965) ................... 22, 23, 27, 28, 29

Gencorp, Inc. v. Am. Int’l Underwriters,

178 F.3d 804 (6th Cir. 1999) ............................. 31

Hand v. Gary,

838 F.2d 1420 (5th Cir. 1988) ............................. 4

In re Loyd,

424 Mich. 514; 384 N.W.2d 9 (1986) ........... 15, 18

In re Stout,

371 Mich. 438; 124 N.W.2d 277 (1963) ............. 15

Ken-N.K., Inc. v. Vernon Twp.,

18 F. App’x 319 (6th Cir. 2001) ....... 22, 26, 28, 29

Kevorkian v. Thompson,

947 F. Supp. 1152 (E.D. Mich. 1997) ................ 26

King v. Whitmer,

No. 2:20-cv-13134-LVP-RSW

(E.D. Mich.) (2020) .............................................. 9

Kugler v. Helfant,

421 U.S. 117 (1975) ................................... 3, 4, 22

Lloyd v. Doherty,

No. 18-3552, 2018 WL 6584288

(6th Cir. Nov. 27, 2018) ............................... 26, 29

vii

TABLE OF AUTHORITIES – Continued

Page

McNatt v. Texas,

37 F.3d 629 (5th Cir. 1994) ......................... 23, 29

Netflix, Inc. v. Babin,

88 F.4th 1080 (5th Cir. 2023)...................... 30, 31

People v. Cassadine,

258 Mich. App. 395,

671 N.W.2d 559 (2003) ................................ 15, 19

People v. Hardrick,

Nos. 333568; 2017 Mich. App. LEXIS

2087 (Dec. 19, 2017) .................................... 16, 17

People v. Hawkins,

340 Mich. App. 155;

985 N.W.2d 853 (2022) ...................................... 17

People v. Hodgins,

85 Mich. App. 62;

270 N.W.2d 527 (1978) ................................ 15, 19

People v. Susalla,

392 Mich. 387, 220 N.W.2d 405 (1974) ... 7, 15, 19

People v. Taylor,

890 N.W.2d 891 (Mich. App. 2016) ................... 21

People v. Thomas,

182 Mich. App. 225;

452 N.W.2d 215 (1989) ................................ 16, 17

Perez v. Ledesma,

401 U.S. 82 (1975) ......................................... 4, 25

Touchston v. McDermott,

234 F.3d 1130 (11th Cir. 2000) ......................... 12

Younger v. Harris,

401 U.S. 37 (1971) ................. i, 1, 4, 21, 22, 25-31

viii

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 ............................. 1, 4, 10

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

3 U.S.C. § 15 .................................................... 2, 13, 14

3 U.S.C. § 5 .......................................... 1, 11, 12, 13, 14

3 U.S.C. § 6 ................................................ 2, 12, 13, 14

42 U.S.C. § 1983 .................................................... 1, 30

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(6) .............................................. 21

MCL 168.41 ............................................................... 10

MCL 168.42 ........................................................... 2, 10

MCL 168.45 ........................................................... 2, 10

MCL 168.46 ........................................................... 2, 10

MCL 168.47 ..................................................... 2, 10, 11

MCL 168.933a ................................................... 2, 9, 15

MCL 750.157a ......................................................... 2, 9

MCL 750.248 ......................................... 2, 9, 15, 16, 19

MCL 750.249 ............................................... 2, 9, 15, 19

MCR 2.116(C)(8) ....................................................... 20

Sup. Ct. R. 10(c) .......................................................... 4

ix

TABLE OF AUTHORITIES – Continued

Page

CONGRESSIONAL RECORD

167 Cong. Rec. H96, 2021 ......................................... 14

OTHER AUTHORITIES

Antonin Scalia & Bryan A. Garner,

READING LAW (2012) .......................................... 31

Erwin Chemerinsky,

FEDERAL JURISDICTION (3d ed. 1999) .......... 28, 29

WHARTON’S CRIMINAL LAW & PROCEDURE ................ 19

1

OPINIONS BELOW

The United States District Court for the Western

District of Michigan, Southern Division, on January

18, 2024, denied Petitioners’ Motion for Preliminary

and/or Permanent Injunction, abstained from

exercising jurisdiction under the doctrine articulated

in Younger v. Harris, 401 U.S. 37 (1971), and

dismissed the action for lack of jurisdiction. App.21a.

On April 17, 2025, the Sixth Circuit affirmed the

District Court’s order (App.1a) in Frost v. Nessel, No.

24-1132, 2025 Fed. App. 0207N (6th Cir.); 2025 U.S.

App. LEXIS 9312; 2025 WL 1136288 (April 17, 2025)

(unpublished).

JURISDICTION

The judgment of the Court of Appeals was

entered on April 17, 2025. App.1a. This Court’s

jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

●

U.S. Const. amend. XIV, § 1

●

42 U.S.C. § 1983

●

3 U.S.C. § 5 (Prior to December 29, 2022)

(App.36a)

2

●

3 U.S.C. § 6 (Prior to December 29, 2022)

(App.37a)

●

3 U.S.C. § 15 (Prior to December 29, 2022)

●

MCL 168.42

Presidential electors; selection at state political party conventions, certification. (App.42a)

●

MCL 168.45

Cross or check mark as vote for presidential

electors. (App.43a)

●

MCL 168.46

Presidential electors; determination by

board of state canvassers; certificate of

election. (version then in effect) (App.43a)

●

MCL 168.47

Convening of presidential electors; time and

place thereof; resignations; refusal or failure

to vote; vacancies. (version then in effect)

(App.44a)

●

MCL 750.248

Making, altering, forging, or counterfeiting

public record

●

MCL 750.249

Uttering and Publishing

●

MCL 168.933a

Forgery

●

MCL 750.157a

Conspiracy

3

STATEMENT OF THE CASE

I.

Introduction

A state attorney general shopped around a highly

political case to a county prosecutor and the U.S.

Department of Justice. They declined to prosecute,

and the county prosecutor’s office issued an opinion

that the facts alleged did not amount to a crime. The

attorney general persisted and brought the charges

directly out of her own office, using charging

documents that alleged facts which, if taken as true,

do not describe a crime.

Imagine if a prosecutor alleged in an indictment

that one Arthur Gates was guilty of breaking and

entering and larceny. The supporting facts: Fred

Smith owned Blackacre, gave Arthur Gates a key, and

told him to go to Blackacre and take a certain

wristwatch. Gates complied. Those facts obviously

would not support breaking and entering or larceny,

and it would be unjust for the prosecution to continue.

Gates’s objections to prosecution would not simply be

“typical defenses raised by criminal defendants”.

App.17a-18a.

This is what Defendant did to Petitioner. She

alleged that he committed a series of acts that – even

if they were proven to be true – would not, as a matter

of law, constitute any charged offense. A prosecution

“that has been brought without a reasonable expectation of obtaining a valid conviction” is the very

definition of bad faith. Kugler v. Helfant, 421 U.S. 117,

124 (1975). But Defendant argued, and the District

Court and Circuit Court agreed, that a single criminal

4

prosecution cannot be sufficient to show bad faith and

overcome the abstention doctrine articulated in

Younger v. Harris, 401 U.S. 37 (1971), which limits a

federal court’s power to enjoin pending state court

criminal proceedings.

This Court has never held that a plaintiff must

show multiple prosecutions to prove bad faith.

Whether multiple prosecutions are a prerequisite for

the bad faith exception to Younger abstention is “an

important question of federal law that has not, but

should be, settled by this Court” under Supreme Court

Rule 10(c).

“There is a constitutional right to be free of bad

faith prosecution.” Hand v. Gary, 838 F.2d 1420, 1424

(5th Cir. 1988). That right exists under the

Fourteenth Amendment. See, e.g., Id. at 1424 n.3. Bad

faith prosecutions “cause sufficient irreparable harm

to support federal injunction of a state prosecution.”

Id. This Court has defined a bad faith prosecution to

include one “brought without a reasonable

expectation of obtaining a valid conviction.” Kugler v.

Helfant, 421 U.S. 117, 126 (1975) (citing Perez v.

Ledesma, 401 U.S. 82, 85 (1975)). While federal court

intervention in a state criminal proceeding is only

permissible in “exceptional circumstances,” Kugler,

421 U.S. at 123, this case amply meets that standard.

Exceptional circumstances include where the plaintiff

shows bad faith, harassment, or flagrant

unconstitutionality of the statute or rule at issue.” Doe

v. University of Kentucky, 860 F.3d 365, 371 (6th Cir.

2017) (emphasis added).

Petitioner Clifford Frost (“Frost”) seeks to enjoin

an ongoing Michigan state prosecution (the “Michigan

Criminal Prosecution”) by the Defendant Michigan

5

Attorney General Dana Nessel (the “AG”) against

Frost and 15 other Michigan citizens (the “Republican

Electors”) who questioned the results of the 2020

presidential election in Michigan. The AG brought the

Michigan Criminal Prosecution with no reasonable

expectation of obtaining valid convictions against the

Republican Electors. She did so to retaliate against

and/or punish the Republican Electors – all of whom

are political opponents of the AG – for their

unsuccessful efforts to protest the outcome of the

election.

What did the Republican Electors do, according

to the AG? They submitted to Congress a document

(the “Republican Elector Certificate”, App.87a) that

the Republican Electors allegedly signed. The AG

alleges that “[n]otwithstanding the fact that the

Democratic Party nominees had been certified by the

Michigan Board of Canvassers as having received the

greatest number of votes for President and VicePresident, the 16 persons who signed the [Republican

Elector Certificate] falsely asserted that they were the

duly elected and qualified Electors from the State of

Michigan.” See Affidavit of Probable Cause, App.60a.

The AG concedes that Congress only accepted the

electoral votes submitted by the Democrat Electors

that were certified by the State of Michigan in

accordance with state statutes. Nonetheless, based

upon the Republican Elector Certificate, the AG has

brought 8 felony counts, all of which require a showing

that the Republican Elector Certificate was a

“forgery,” and which seek to imprison Frost and the

other Republican Electors for up to 14 years. See

Indictment, App.82a.

6

But the Republican Elector Certificate was

exactly what it purported to be, and what the AG says

it was – a piece of paper allegedly signed by the 16

Republican Electors that did not bear the Seal of the

State of Michigan or the Governor’s certification. It

had no legal effect and could not have caused the

President of the Senate, Mike Pence, to award

Michigan’s electoral votes to the wrong candidate.

Without the seal and certification, the Republican

Elector’s Certificate did not, and could not have,

“falsely asserted” anything. It did not purport to

exchange the real Democrat electors for fake

Republican electors and could not have affected the

outcome of the election in any way.

In the State of Michigan, the AG – the prosecutor

with the broadest powers – is an elected official and a

member of a political party. The Michigan Criminal

Prosecution represents an attempt to criminalize

what was at most a futile political protest. Pursuant

to federal and state law, Michigan’s 16 electoral votes

for president are cast by “electors” of the political

party whose candidates receive the highest number of

votes in the State in the presidential election. After

the 2020 presidential election, the State of Michigan

(through Governor Gretchen Whitmer), after

determining that Joe Biden and Kamala Harris

received the highest number of votes in the State,

certified the electors designated by the Democratic

Party (the “Democrat Electors”) as the electors who

would cast Michigan’s 16 electoral votes. Governor

Whitmer thus caused the Seal of the State of Michigan

and her own certification to be affixed to the Democrat

Elector Certificate, and not the Republican Elector

Certificate Frost allegedly signed. That made the

7

Republican document a nullity under state law.

Importantly, the AG has not even alleged that the

Republican Electors tried to have Governor Whitmer

certify and seal the wrong elector certificate. They

merely (allegedly) sent the Republican Elector

Certificate to Congress without the essential seal and

certification, which rendered the Republican Elector

Certificate an ineffective piece of paper, not a forgery

of anything.

Again, the factual allegations of “forgery” which

form the basis for all the counts in the Michigan

Criminal Prosecution, even if true, as a matter of law

do not constitute a crime for at least two reasons.

First, the crime of forgery requires an act that makes

an instrument appear to be what it is not (see, e.g.,

People v. Susalla, 392 Mich. 387, 220 N.W.2d 405

(1974)), but the Republican Electors’ Certificate was

exactly what it purported to be. Second, forgery cannot

occur unless the act of forgery exposes another to loss,

and there is no question that the actions the AG alleges

were undertaken by Plaintiff and the other Republican

Electors as a matter of law could not have resulted in

Michigan’s 16 electoral votes being awarded to the

Republican Party’s candidates and therefore could not

have exposed anyone to a “loss.”

Frost’s preliminary exam will purportedly determine whether the AG has “sufficient facts to determine

whether or not a crime was committed”, and his trial

will purportedly determine whether the AG has proven

the facts she alleged. But the AG has not even alleged

facts in her indictment that would, if true, constitute

a crime. Neither a preliminary exam nor a trial is warranted. Frost endured a multi-day preliminary exam

that still has not resulted in a bind-over decision. The

8

preliminary exam, the potential binding over for trial,

and the psychic cost of enduring a prosecution that

does not describe a crime have violated Frost’s

constitutional rights.

The Michigan and Federal election statutes which

applied to the 2020 Presidential election collectively

demonstrate that because Governor Whitmer formally

certified the Democrat Electors as the duly elected

Michigan electors, her certification was “conclusive”

under federal law and Congress was bound by it when

it counted the electoral votes from the State of Michigan.

Not surprisingly, then, Congress counted only the

electoral votes submitted by the Democrat Electors.

Thus, the Republican Elector Certificate at most had

the effect of furthering a political protest, and could

never have resulted in Michigan’s 16 electoral votes

being cast for the Republican Party candidates.

Notably, the AG herself has made public statements and filed pleadings in other cases acknowledging

that the Elector Certificate was a legal nullity. In one

brief filed in this Court, the AG cited a December 15,

2020 newspaper article titled Michigan Republicans

who cast electoral votes for Trump have no chance of

changing Electoral College result. Nonetheless, the

AG has claimed that the Elector Certification was

“part of a much bigger conspiracy” to “overthrow the

U.S. Government.” On Rachel Maddow’s nationally

televised television program on MSNBC, prior to filing

the charges, the AG called the conduct of the Republican

Electors a “conspiracy to overthrow the United States

Government” and constituted “the most significant

case of election fraud ever in our state’s history.” The

AG made similar statements to other media outlets

like CNN and the Detroit News. Additionally, in a

9

federal brief she filed in King v. Whitmer, E. D. Mich.

Case No. 2-20-cv-13134, a case arising out of a different

challenge to the results of the 2020 election, the AG

flatly stated that, as of December 14, 2020, there was

“no process for permitting the unsuccessful elector

candidates to cast their votes.”

II. Factual and Legal Background

A. The Alleged

Prosecution

Basis

for

the

State

The purported factual basis for the Michigan Criminal Prosecution is set forth in the Affidavit of Special

Agent Investigatory Howard Shock (“Shock”), App.60a.

Shock’s affidavit describes felony counts under MCL

750.248 (“Making, altering, forging, or counterfeiting

public record”), MCL 168.933a (Forgery), and MCL

750.249 (Uttering and Publishing), plus four additional

counts under MCL 750.157a (Conspiracy). The core of

Shock’s allegations is “that a fraudulent ‘Certificate of

Votes of the 2020 Electors from Michigan’ was created”

and “was made and published with the intent to

defraud the National Archives, President of the U.S.

Senate, and others.”

Shock also describes how Governor Whitmer

“signed and issued an Amended Certificate of Ascertainment of the Electors of the President and Vice

President of the United States” identifying the Democratic candidates as the winners and stating that the

Democratic electors “were duly elected as Electors.”

Appx.68a. Shock states that due to the Governor’s

certification, “[t]he Republican nominees were not the

duly elected Presidential electors and had no legal

authority to act as duly elected Presidential electors.”

Id.

10

An examination of the applicable Michigan and

Federal election statutes, and the application of the

Michigan criminal statutes which form the basis for

the Michigan Criminal Prosecution confirms that no

crime was committed here, even if all the AG’s factual

allegations are true. Because no crime was committed,

Frost has the right under the Fourteenth Amendment

to be free from prosecution for conduct that as a

matter of law, could not have constituted a crime – not

starting after his preliminary examination, or at any

later date, but now.

B. The Michigan Election Statutes at Issue

The procedure by which Michigan selects Presidential electors is set out in Chapter IV of the Michigan

Election Law (MCL 168.41 – MCL 168.47). The following

Michigan statutory provisions governed that process

at the relevant time.1

First, MCL 168.42 requires that, prior to a presidential election, each political party must elect a slate

of electors who would be entitled to cast the State’s 16

electoral votes in the event that their party’s chosen

candidates for President and Vice President received

the most votes in the Presidential election. App.42a.

Second, MCL 168.45 makes clear that Michigan voters

in a presidential election do not directly vote for individual candidates but instead vote for the presidential

electors chosen by the political party of the individual

candidate. App.43a. Third, MCL 168.46 authorizes

the Michigan Board of Canvassers to determine the

1 MCL 168.46 and 168.47 were substantially revised in February

2024. The versions of those provisions referenced here are the

ones that were in effect at relevant times.

11

Presidential and Vice-Presidential candidates who

receive the highest number of votes in the election,

and further requires the Governor of the State of

Michigan to certify the legal electors elected by the

political party based upon the Board of Canvassers

determinations. App.43a.

Importantly, only the electors certified by the

Governor have the legal ability to cast the State’s

electoral votes for President and Vice-President. This

is made clear by MCL 168.47. App.44a.

The AG concedes that all the above statutorily

required procedures and actions actually occurred in

the aftermath of the November 2020 Presidential

election, as to the Democrat Electors and not as to Frost

and the other Republican Electors. See Shock Affid.,

App.60a; Affidavit of Ascertainment, App.87a.

C. The

Applicable

Statutes2

Federal

Election

The State of Michigan’s admitted adherence to its

own statutory procedures for certifying electors

ensured that only the Democratic Electors could legally

cast Michigan’s electoral votes for President and VicePresident after the 2020 election regardless of any

legal or illegal actions taken by the Republican

Electors. This is because, under federal law, Governor

Whitmer’s certification of the Democrat Electors under

Michigan law was “conclusive” and had to be followed

by Congress. See 3 U.S.C. § 5.

2 The federal statutes referenced in this section were substantially

revised in 2022. The versions of those provisions referenced here

are the ones that were in effect in during the relevant time period

– i.e., November 2020 through January 2021.

12

“Both the Constitution of the United States and 3

U.S.C. § 5 indicate that states have the primary

authority to determine the manner of appointing

Presidential Electors and to resolve most controversies

concerning the appointment of Electors.” Touchston v.

McDermott, 234 F.3d 1130 (11th Cir. 2000). Indeed, in

Bush v. Palm Beach County Canvassing Bd., 531 U.S.

70, 77; 121 S. Ct. 471 (2000), this Court observed that

Section 5 “creates a ‘safe harbor’ for a State insofar as

congressional consideration of its electoral votes is

concerned. If the state legislature has provided for

final determination of contests or controversies by a

law made prior to election day, that determination

shall be conclusive if made at least six days prior to

said time of meeting of the electors.” [Emphasis added].

See also Id. at 78 (observing that Section 5 “contains

a principle of federal law that would assure finality of

the State’s determination if made pursuant to a state

law in effect before the election.”) (emphasis added).

Here, the AG concedes that the State of Michigan

certified the Democratic Electors pursuant to a state

law in effect before the election within the times set

forth in Section 5. Accordingly, the certification of the

Democratic Electors was conclusive under federal law

and Congress was required to give full legal effect to

the electoral votes cast by Democratic Electors, and

Congress was precluded from even considering any

alternative submission, including the document Frost

signed.

This is further confirmed by 3 U.S.C. § 6 (App.37a38a), which also makes clear that the competing

Elector Certification purportedly submitted by Frost

and the other Republican Electors could not have been

13

given any effect because it was contradicted by the

Governor’s Certificate.

Because the State of Michigan complied with its

own statutes in certifying the Democratic Electors,

Congress was required to count the votes submitted

by the Democratic Electors, and only the Democratic

Electors. See 3 U.S.C. § 15, App.38a.

Thus, in Section 15, Congress expressly envisioned two potential scenarios and dictated how Congress

was required to address each one. First, Section 15

addressed the situation where only “one return was

received” from a State. Under those circumstances,

Congress could not reject the electoral votes so long as

they had “been regularly given by electors whose

appointment has been lawfully certified to according

to section 6 of this title.” Clearly, the Governor’s

certification here satisfied 3 U.S.C. § 6, and the votes

purportedly cast by the Democrat Electors were in fact

cast by the Democrat Electors. Accordingly, Congress

was legally required to count Michigan’s electoral

votes as cast by the Democrat Electors.

The same is true for the other possibility. Elsewhere in Section 15, Congress considered the possibility

that competing slates of electors could submit electoral

votes for the same state. Under those circumstances,

Congress expressly required that Congress consider

only the votes “given by the electors who are shown by

the determination mentioned in section 5 of this title

to have been appointed.” There is no question that the

only electors determined by Section 5 to have been

appointed were the Democratic Electors.

But to make this conclusion even more inevitable,

Section 15 goes on to provide that the Governor’s cert-

14

ification, by virtue of 3 U.S.C. § 6, would have been

dispositive, even if the State of Michigan had not

reached a “determination” as defined by 3 U.S.C. § 5.

This is because Section 15 provides:

. . . in such case of more than one return or

paper purporting to be a return from a State,

if there shall have been no such determination of the question in the State aforesaid,

then those votes, and those only, shall be

counted which the two Houses shall concurrently decide were cast by lawful electors

appointed in accordance with the laws of the

State, unless the two Houses, acting separately, shall concurrently decide such votes

not to be the lawful votes of the legally

appointed electors of such State. But if the

two Houses shall disagree in respect of the

counting of such votes, then, and in that case,

the votes of the electors whose appointment

shall have been certified by the executive of

the State, under the seal thereof, shall be

counted.

Again, Governor Whitmer’s certification ensured

that, even if the Republican Elector Certificate had

reached the floor of Congress, the applicable state and

federal statutes collectively prohibited Congress from

counting the votes of the Republican Electors.

Not surprisingly, then, the Congressional Record

confirms that Congress received the Michigan electoral

votes submitted by the Democrat Electors without even

mentioning the Republican Elector Certificate. See

167 Cong. Rec. H96, 2021.

15

D. The Electors’ Certificate Could Not Be a

Forgery Because the Certificate Did Not

Purport to Be Something It Was Not

All the counts of the criminal complaint require a

showing that the defendants in the Michigan Criminal

Prosecution have committed the crime of forgery.3

The Michigan Supreme Court has defined forgery as

the making of a document with intent to deceive in a

manner which exposes another to loss. In re Loyd, 424

Mich. 514, 526; 384 N.W.2d 9 (1986). In People v.

Susalla, 392 Mich. 387; 220 N.W.2d 405 (1974), the

Court reaffirmed its assertion set forth in In re Stout,

371 Mich. 438, 441; 124 N.W.2d 277 (1963) that forgery

includes any act which fraudulently makes an instrument purport to be what it is not. Susalla, 392 Mich.

at 390. See also People v. Hodgins, 85 Mich. App. 62,

65; 270 N.W.2d 527 (1978). The Susalla Court also

concluded that the key to forgery is that the writing

itself was a lie. Susalla, 392 Mich. at 392-393.

Here, given the AG’s allegations, the Electors’

Certificate can only be characterized as being exactly

what it purports to be. It accurately identifies the

persons purporting to be the “duly elected and

qualified Electors for President and Vice-President of

the United States of America from the State of

3 MCL 750.248 and MCL 168.933a expressly criminalize forgery.

The elements of uttering and publishing statute, MCL 750.249,

are (1) knowledge on the part of the defendant that the instrument

was false; (2) an intent to defraud, and (3) either a presentation

of the forged instrument for payment or presentation of a forged

“record,” “public record,” or other document specified in MCL

750.248 in a manner “capable of affecting the rights of others or

creating liability in others.” People v. Cassadine, 258 Mich. App.

395, 3990400, 671 N.W.2d 559 (2003).

16

Michigan.” In sum, the “writing itself” is “not a lie.” At

most, the AG alleges that the Elector’s Certificate

contains false statements of fact. But an authentic

document that contains false statements is not, as a

matter of law, a “forgery.” For example, in People v.

Thomas, 182 Mich. App. 225; 452 N.W.2d 215 (1989),

a police officer was charged with forgery for including

false information in a police report. The Court of Appeals

held that there was no forgery because the police

report was exactly what it purported to be, notwithstanding the allegedly false information. The Court

observed:

In the instant case, it can be argued that

defendant included the false information with

the intent to deceive and that such action

resulted in exposing the suspect to loss of his

freedom. However, we are hard put to find

that this single statement made the entire

police report purport to be something it was

not and decline any invitation to extend the

definition of forgery to this context. [Id. at

229-230 (emphasis added).

Similarly, in People v. Hardrick, Nos. 333568,

333898; 2017 Mich. App. LEXIS 2087 (Dec. 19, 2017)

(ECF No. 1-13), defendant recorded numerous quitclaim

deeds on properties he did not actually own. He then

proceeded to attempt to sell the properties to third

parties. He was charged with, among other crimes,

forgery under MCL 750.248. Defendant was convicted

of perjury, but the Court of Appeals reversed, finding

that the quit claim deeds were “exactly what they purported to be.” In reaching this conclusion, the Court

observed:

17

Here, the quit claim deeds, prepared by

defendant, did not purport to be anything

other than quitclaim deeds conveying whatever interest defendant had in the property

to his company or vice versa. . . . the deeds

only purported to convey whatever interest

defendant or his company possessed, even if

neither possessed any legal interest. Accordingly, the quitclaim deeds were not falsely

made, and there was insufficient evidence to

support defendant’s convictions of forgery

. . . [Hardrick, 2017 Mich. App. LEXIS 2087

at **9-10, PageID.134 (emphasis added).]

Like the police report in Thomas and the quit

claim deeds in Hardrick, under the facts alleged in the

indictment, the Republican Electors’ Certificate indisputably is authentic. It identifies each person purporting

to execute it, and the indictment alleges that each of

the Republican Electors signed the Certificate. The

fact that, in the government’s view, the Republican

Electors were not authorized to submit the Certificate

and that they falsely represented that they were duly

authorized does not change the fact that the Certificate

is “exactly what it purported to be.”4

4 These facts clearly distinguish this case from, for example,

People v. Hawkins, 340 Mich. App. 155; 985 N.W.2d 853 (2022).

There, defendant, an election worker, was charged with forgery

based upon her alteration of an official election record to change

the number of votes cast in an election. The Court held that the

forgery charge should go forward because “defendant’s fraudulent

act of falsifying the QVF made that altered election record appear

to be what it certainly was not, an accurate report regarding the

AV ballots.” Here, the Republican Electors’ Certificate is exactly

what it appears to be.

18

The Elector’s Certificate could be deemed to

“purport to be what it is not” only if Frost and the other

Republican Electors tried to “dummy up” a certificate

that appeared to comply with the state and federal

requirements to evade the state and federal electoral

requirements, and fool Congress into giving Michigan’s

16 electoral votes to the Republicans. But that would

require Frost and the other Republican Electors to, at

the very least, present an Electors’ Certificate that didn’t

include their own signatures, but instead contained

the forged signatures of the Democratic Electors (presumably falsely voting for Trump and Pence) coupled

with a forged copy of the necessary Governor’s Certification.

Here, however, there is no allegation that Frost

forged the signature of any of the Democratic Electors,

or that Frost forged the Governor’s Certificate. Both

of those types of forgery are necessary before the Elector

Certificate could be characterized as something other

than what it purports to be.

E. The Electors’ Certificate Could Not

Constitute a Crime Because as a Matter

of Law It Could Never Have Achieved the

Purported Goal of Overturning the

Election

The Elector Certificate was a legal nullity and never

could have achieved the Republican Electors’ purported

goal of having Congress award Michigan’s 16 electoral

votes to Trump and Pence.

Again, forgery requires “the making of a document

with intent to deceive in a manner which exposes

another to loss.” In re Loyd, 424 Mich. 514, 526, 384

N.W.2d 405 (1974) (emphasis added). See also People

19

v. Hodgins, 85 Mich. App. 62, 65; 270 N.W.2d 527 (1978)

(forgery requires a showing “that a liability is created

in someone other than the defendant or some liability

is enlarged.”) Said another way, forgery requires “the

false making or material alteration, with intent to

defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of legal

liability.” People v. Susalla, 392 Mich. 387, 392; 220

N.W.2d 405 (1974) (quoting 2 WHARTON’S CRIMINAL

LAW & PROCEDURE Sec. 621, p. 396) (emphasis added).

The same is true under the uttering and publishing statute, MCL 750.249. That statute requires, among

other things, either a presentation of the forged instrument for payment or presentation of a forged “record,”

“public record,” or other document specified in MCL

750.248 in a manner “capable of affecting the rights of

others or creating liability in others.” People v.

Cassadine, 258 Mich. App. 395, 3990400, 671 N.W.2d

559 (2003).

To be a crime, an alleged forgery must have at least

potential legal consequences, either by benefiting the

forger or harming the victim, or both. Here, however,

the allegedly forged Republican Electors’ Certificate

could not have been legally capable of working the

allegedly intended fraud or injury because (1) it did

not have Governor Whitmer’s certification, (2) Governor

Whitmer’s certification named the Democrat Electors

and not the electors named in the allegedly forged

certification, and (3) the state and federal statutory

scheme makes Whitmer’s certification “conclusive” as

to the identity of the electors. Because the Electors’

Certificate did not “expose” anyone to a “loss,” there

could be no forgery as a matter of law.

20

III. Procedural History

A. Frost Moved Michigan’s 54-A District

Court to Dismiss the Indictment Against

Frost for Failure to State a Claim, But the

54-A District Court Denied Frost’s Motion

on

Incorrect

Procedural

Grounds

Without Reaching the Motion’s Merits

On September 14, 2023, Frost filed a Motion for

Summary Disposition under MCR 2.116(C)(8) in the

Michigan Criminal Prosecution. The 54-A District

Court denied Plaintiff’s Motion for Summary Disposition on wholly procedural grounds, without reaching

the motion’s merits. See Hearing Trans. 10/6/23,

App.52a (“I don’t think we’re in a situation here where

it’s appropriate to bring a motion for Summary

Disposition. . . . It should be something that should be

given or taken before the court, maybe at the circuit court

level . . . We don’t even know if they have sufficient

facts to determine whether or not a crime was

committed. All we have is a pleading.”).

B. The Proceedings in the Western District

of Michigan

On November 21, 2023, Frost filed his Complaint

in the Western District of Michigan. ECF No. 1,

PageID.1. On November 30, 2023, Frost filed a Motion

for Preliminary and/or Permanent Injunction in the

District Court. ECF No. 5, PageID.346. Frost’s motion

included a request for expedited consideration. Id.,

PageID.347. The District Court denied Frost’s request

for expedited consideration and set a briefing schedule

for Frost’s motion. Order Denying Expedited Consideration, ECF No. 11, PageID.422-423.

21

In its January 18, 2024 Order, the District Court

held it was required to abstain from exercising subject

matter jurisdiction over this case under Younger v.

Harris, 401 U.S. 37 (1971). App.33a. The District Court

acknowledged that under Younger, 401 U.S. at 53-54,

and its progeny like Doe v. Univ. of Ky., 860 F.3d 365,

371 (6th Cir. 2017), notwithstanding abstention “a

plaintiff still has the opportunity to show that an

exception to Younger applies. These exceptions include

bad faith, harassment, or flagrant unconstitutionality

of the statute or rule at issue.”

However, the District Court held that “the state

prosecution provides Frost with adequate opportunities to raise constitutional challenges and any other

challenges in a competent forum.” App.27a. Even if

the allegations against Frost “do not amount to a crime”,

Frost may assert a “sufficiency-of-the-evidence claim in

the state criminal proceedings – starting at his impending preliminary examination.” The Circuit Court noted

that the purpose of a preliminary exam “is to determine

whether a crime was committed” (Id., quoting People

v. Taylor, 890 N.W.2d 891, 894 (Mich. App. 2016)), but

failed to recognize that the question here is whether a

crime was alleged. Frost brought the equivalent of a

Rule 12(b)(6) motion to dismiss for failure to state a

claim, and the 54-A District Court refused to entertain

that motion. Surely a crime must be alleged before a

criminal defendant can be expected to undergo a

preliminary exam, not to mention a jury trial.

The District Court further held that a plaintiff

alleging bad faith prosecution must show that he or

she has been subjected to multiple prosecutions or

threats of prosecution. ECF No. 15, PageID.533-534.

As discussed below, the District Court’s cited authority

22

does not say what the District Court believes it said.

Neither the U.S. Supreme Court in Dombrowski v.

Pfister, 380 U.S. 479 (1965) nor this Court in KenN.K., Inc. v. Vernon Twp., 18 F. App’x 319, 324 n.2 (6th

Cir. 2001) held that a plaintiff must show multiple

prosecutions to prove a prosecution was brought in

bad faith and without any expectation of securing a

conviction.

Finally, the District Court held that “Frost’s

argument that the prosecution cannot prove its case

against him or has failed to state an actionable claim

is akin to the claims by almost every defendant

contesting liability in any criminal case.” App.32a. As

discussed below, that holding misses the point. This is

not a case of “a crime was committed, but I didn’t do

it,” or “I did it, and if the facts were what the

prosecutor says, that would be a crime, but let me tell

you the real facts.” Here, no possible crime has been

alleged, even if all the allegations in the charging

documents are taken as true.

C. The Proceedings in the Sixth Circuit

The Sixth Circuit affirmed the Western District’s

decision. In the portion of the Sixth Circuit’s opinion

that is relevant to this Petition, the court found that

“the cost, anxiety, and inconvenience of having to

defend against a single criminal proceeding alone

do[es] not constitute [the kind of] ‘irreparable injury’”

that warrants abstention pursuant to Younger. App.18a

(citing Kugler, 421 U.S. at 124 (quoting Younger, 401

U.S. at 46).

23

REASONS FOR GRANTING THE PETITION

I.

INTRODUCTION

The Sixth Circuit issued a thoughtful opinion

that seems reasonable at first glance. “Why not let the

state prosecution play out? It’s just one felony prosecution, not a pattern. Frost is not a civil rights activist

in the Jim Crow south, like the plaintiffs in Dombrowski.

Let’s not jump to conclusions, or else every defendant

will want federal review of whether his or her charging

documents alleged a crime.”

But the Sixth Circuit’s reasoning ignores Frost’s

personal, individual constitutional right to be free

from bad faith prosecution. The court appears to agree

with the AG’s contention that Frost’s objections to the

Michigan Criminal Prosecution are nothing more than

“typical defenses raised by criminal defendants that

do not warrant federal interference in Michigan state

court proceedings.” It is difficult to believe a “typical”

criminal defendant argues the charging documents do

not, for example, allege a murder. “Ms. Prosecutor, you

don’t allege anyone died” is probably not a common

defense to a murder charge.

More importantly, the District Court’s decision,

which the Circuit Court essentially adopted, reveals

an apparent misconception about the state of the law

on the part of the federal courts, or even a circuit split

under McNatt v. Texas, 37 F.3d 629 [published in fulltext format at 1994 U.S. App. LEXIS 41439] (5th Cir.

1994) (declining to find a bad faith prosecution, but

making no reference to multiple prosecutions). No

prosecutor would in good faith knowingly charge a

24

citizen with a “non-crime” such as breaking and

entering his own house. A prosecutor would not start

a charging affidavit by saying “the defendant owns

and resides in the property at 123 Main Street. He

lives alone, and no other person has any right to

occupy 123 Main Street. On the night in question, the

defendant went to the store. When he returned, 123

Main Street was empty. No one was inside. Only the

defendant had the right to be inside. The defendant

used his lawfully possessed key to unlock the front

door and entered the dwelling, with the intent to go to

sleep in his own bed. He therefore broke and entered

the property without permission, with the intent to

commit a felony therein, and is guilty of burglary.” If

a prosecutor charged a citizen with burglary under those

circumstances, using charging documents that alleged

the above facts and nothing more, the prosecutor’s bad

faith would be obvious. With no allegation of a crime,

there could be no possibility of obtaining a valid

conviction, and thus no reasonable expectation of a

valid conviction. That would leave only bad faith or

harassment as possible motives for the charges.

One can imagine a prosecutor bringing charges

under slightly different circumstances: “The defendant

leased 123 Main Street to a tenant, who had the

exclusive right to occupy the property. The defendant

had a key so he could access the rental property in an

emergency. Using his own lawfully possessed key, the

defendant let himself in with the intent to kill the

tenant.” Those statements describe a crime.

Or imagine a more ambiguous set of circumstances:

“The defendant went to the store and left his girlfriend

at her house. They had been fighting. She locked the

door behind the defendant. When he returned, the

25

defendant entered the house using a key in his possession.” Under those alleged facts, there is some ambiguity. Did the defendant have the right to enter the

house, when his girlfriend told him to stay out and

locked the door? Did the girlfriend previously give the

defendant a key and tell him “come in anytime”? Did

the girlfriend tell the defendant not to come in? Did

she call down to the defendant from a window and tell

him to let himself in with his own key? There are

many potential questions of fact for a jury, and if the

prosecutor can marshal evidence to support his or her

theory of the case, then the court would be justified in

binding over the case for trial.

There is no such ambiguity here. The AG has

alleged a non-crime, like “possession of alcohol by a

person over 21 years of age who is not for any reason

prohibited from possessing alcohol.” The Michigan 54A District Court has refused to consider Frost’s motion

to dismiss. Frost has shown the requisite bad faith by

the AG, or at a minimum has shown enough evidence

of bad faith to warrant the exercise of federal jurisdiction followed by further inquiry through discovery

and an evidentiary hearing.

II. YOUNGER ABSTENTION

Exceptions to Younger “include bad faith, harassment, or flagrant unconstitutionality of the statute or

rule at issue.” Doe v. University of Kentucky, 860 F.3d

365, 371 (6th Cir. 2017) (emphasis added). Younger

abstention is not required here because the State

Court Prosecution was brought in bad faith and/or to

harass Frost. Frost can satisfy the “bad faith” requirement by showing that the state officials have proceeded

“‘without hope of obtaining a valid conviction.’” Perez

v. Ledesma, 401 U.S. 82, 85; 91 S. Ct. 674 (1971). See

26

also Kevorkian v. Thompson, 947 F. Supp. 1152, 1164

(E.D. Mich. 1997) (“Bad faith generally means that a

prosecution has been brought without a reasonable

expectation of obtaining a valid conviction”).

In the proceedings below, the Western District of

Michigan held:

To apply, “the threat to [Frost’s] federally

protected rights must be one that cannot be

eliminated by his defense against a single

criminal prosecution.” Younger, 401 U.S. at

46. As already noted, Frost has multiple opportunities in the state proceedings to present

and prevail on his theories. This strongly

militates against applying the bad faith prosecution exception here. Indeed, “the Supreme

Court has applied the bad faith/harassment

exception to ‘only one specific set of facts:

where state officials initiate repeated prosecutions to harass an individual or deter his

conduct, and where the officials have no intention of following through on these prosecutions.” Lloyd v. Doherty, No. 18-3552, 2018 WL

6584288, at *4 (6th Cir. Nov. 27, 2018) (quoting

Ken-N.K., Inc. v. Vernon Township, 18 F. App’x

319, 324 n.2 (6th Cir. 2001)). [Opinion, PageID.

533-534.]

The “one specific set of facts”, according to the District

Court, requires proof of multiple prosecutions. But

nothing in the cited cases established such a requirement, and the Sixth Circuit appears to have adopted

the Western District of Michigan’s requirement of

multiple prosecutions.

27

First, Younger itself does not require multiple

prosecutions. The Supreme Court in Younger said the

“inconvenience of having to defend against a single

criminal prosecution” would not ordinarily justify

federal interference with state prosecutions. Younger,

401 U.S. at 46. However, the Younger court noted that

the circumstances of Dombrowski “sufficiently establish

the kind of irreparable injury, above and beyond that

associated with the defense of a single prosecution

brought in good faith, that had always been considered

sufficient to justify federal intervention.” Id. at 48

(emphasis added). The Younger court then found that

“There is no suggestion that this single prosecution

against Harris is brought in bad faith or is only one of

a series of repeated prosecutions to which he will be

subjected.” Id. at 49. Nowhere does Younger hold that

multiple prosecutions are necessary to show bad faith.

To the contrary, Younger examined whether “this single

prosecution . . . is brought in bad faith” and merely

noted that “defense of a single prosecution brought in

good faith” would not justify federal interference.

It is true that in Dombrowski, the plaintiffs had

been prosecuted twice. But Frost is entitled to at least

explore whether the AG’s motives are similar to those

of the defendants in Dombrowski v. Pfister, 380 U.S.

479, 482; 85 S. Ct. 1116 (1965), of whom the plaintiff

alleged:

that the threats to enforce the statutes

against appellants are not made with any

expectation of securing valid convictions, but

rather are part of a plan to employ arrests,

seizures, and threats of prosecution under

color of the statutes to harass appellants and

discourage them and their supporters from

28

asserting and attempting to vindicate the

constitutional rights of Negro citizens of

Louisiana.

But the cases following Younger did not view Younger

as holding that multiple prosecutions were necessary.

The Sixth Circuit in Ken-N.K., Inc. v. Vernon Twp., 18

F. App’x 319, 324 n.2 (6th Cir. 2001) stated as follows:

Commentators have noted that the Supreme

Court has applied the “bad faith” exception

to only one specific set of facts: where state

officials initiate repeated prosecutions to

harass an individual or deter his conduct,

and where the officials have no intention of

following through on these prosecutions.

Erwin Chemerinsky, FEDERAL JURISDICTION

§ 13.4, at 806-08 (3d ed. 1999). In this case,

Shiawassee County followed through with

its nuisance suit against the Canfields and,

indeed, was successful in enjoining the Canfields from continuing to present adult

entertainment. The facts of this case simply

do not fit within the Supreme Court’s narrow

interpretation of the bad faith exception.

[emphasis added]

Ken-N.K. does not hold that multiple prosecutions are

necessary, or even reflect such a requirement in

Younger or Dombrowski. It merely cites a single commentator, Erwin Chemerinsky, who wrote in his

treatise that as of 1999, the U.S. Supreme Court had

only applied the “bad faith” exception to repeated

prosecutions. That is an interesting “factoid” but not

a strict limitation. The Supreme Court has never said

that Younger requires abstention unless the prosecution

29

at issue is, for example, the second, third, or fourth

such prosecution of the same individual.

Lloyd v. Doherty, No. 18-3552, 2018 U.S. App.

LEXIS 33324, at *9 (6th Cir. Nov. 27, 2018) notes KenN.K.‘s footnoted “factoid” but also cites a Fifth Circuit

case that apparently involved only a single prosecution:

As we have explained, the Supreme Court

has applied the bad faith/harassment exception “to only one specific set of facts: where

state officials initiate repeated prosecutions

to harass an individual or deter his conduct,

and where the officials have no intention of

following through on these prosecutions.”

Ken-N.K., Inc. v. Vernon Township, 18 F.

App’x 319, 324-25 n.2 (6th Cir. 2001) (citing

Erwin Chemerinsky, Federal Jurisdiction

§ 13.4, at 806-08 (3d [*10] ed. 1999)); see also,

e.g., McNatt v. Texas, 37 F.3d 629 [published

in full-text format at 1994 U.S. App. LEXIS

41439] (5th Cir. 1994) (holding that the bad

faith/harassment exception to Younger “is

extremely narrow and applies only in cases

of proven harassment or prosecutions undertaken without hope of obtaining valid convictions”).

In McNatt, the court held that the plaintiff’s “conclusional allegation of bad faith prosecution is

insufficient to bring this case under the exception in

Younger“, but made no reference to repeated prosecutions. Although the law may favor federal interference where there have been repeated prosecutions,

and the principal Supreme Court case that led to

Younger abstention (i.e., Dombrowski) involved repeated

30

prosecutions, it is clear that repeated prosecutions are

not a threshold requirement for Younger abstention.

Is the AG’s prosecution of Frost and others –

which she brought more than two years after she

alleges they broke the law – intended to prevent Frost

and the other criminal defendants from participating

in future elections? Is the prosecution intended to

discourage citizens from agreeing to serve as Republican electors, lest they find themselves indicted for

felonies? The District Court’s dismissal of this action

without allowing Frost to examine the AG denied Frost

the right to investigate these and other possibilities.

At worst for Frost, there is an issue of first

impression regarding whether a criminal defendant

must show multiple prosecutions to prove that any

prosecution was brought in bad faith. No binding

authority strictly requires multiple prosecutions

where a single prosecution is not “by itself” the basis

of a federal plaintiff’s constitutional claims. It also

makes no logical sense to require multiple prosecutions.

What if the criminal defendant, now a plaintiff in a

federal Section 1983 suit like this one, were accused

of a heinous crime and denied bail, or had cash bail

set at an amount he or she could not possibly afford?

Would that citizen have to sit in jail for a year

awaiting trial, with no recourse for the prosecutor’s

bad faith except to pray for justice in state court?

Younger and its binding progeny held that multiple

prosecutions can be sufficient, but are not necessary,

to show bad faith. This Court can and should consider

other factors such as those the Fifth Circuit examined

in Netflix, Inc. v. Babin, 88 F.4th 1080 (5th Cir. 2023),

which Frost discussed in his Corrected Brief on

Appeal, pp. 28-33. The same “mosaic of bad faith” that

31

occurred in Netflix is present here, including novel

charges, harassment and retaliation for the exercise

of a constitutional right, and inflammatory public

statements by the prosecutor. At a minimum, this

case deserves further review by the District Court.

Finally, this Court’s formulation of the standard

in Doe v. University of Kentucky, 860 F.3d 365, 371

(6th Cir. 2017) suggests that harassment in the form

of multiple prosecutions is not required if bad faith is

shown. There the Court stated: “[t]hese exceptions

include bad faith, [or] harassment, or flagrant unconstitutionality of the statute or rule at issue.”

(emphasis added). This Court has observed that “‘or’

is generally considered a ‘disjunctive’ term which

provides alternatives.” Gencorp, Inc. v. Am. Int’l

Underwriters, 178 F.3d 804, 821 (6th Cir. 1999) (citing

Ohio law for the proposition). See also Antonin Scalia

& Bryan A. Garner, READING LAW (2012) (“Under the

conjunctive/disjunctive canon, and combines items

while or creates alternatives. Competent users of the

language rarely hesitate over their meaning.”). If “bad

faith” requires “harassment” (i.e., multiple, repeated

civil rights violations), then “bad faith” by itself means

nothing, and/or the only way to discern a prosecutor’s

state of mind is by showing serial prosecutions.

Clearly, there is at minimum a question among

commentators and lower courts (particularly the

Sixth Circuit and Western District of Michigan) about

whether Younger requires more than one prosecution

to show bad faith. As described above, tracing the

various courts’ reasoning back to Younger shows that

the intercession of Mr. Chemerinski may have effectively given rise to a “multiple prosecution rule” this

Court never intended to create. For the sake of Frost

32

and others like him who might suffer a bad faith

prosecution, the question of whether the federal

courts will stop the first such prosecution, or at least

exercise jurisdiction long enough for the plaintiff to

develop an already-robust factual record, is of great

importance.

CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, this Court should

grant this Petition for Writ of Certiorari.

Respectfully submitted,

Edward F. Kickham III

Counsel of Record

KICKHAM HANLEY PLLC

40950 Woodward Ave., Suite 306

Bloomfield Hills, MI 48304

(248) 544-1500

ekickhamjr@kickhamhanley.com

Kevin D. Kijewski

KDK LAW

950 East Maple Road

Suite 204

Birmingham, MI 48009

(248) 971-0476

kevin@kdklawoffice.com

Counsel for Petitioner

July 16, 2025