Franken Camp Asks Court To Have Coleman Pay Costs -- What Next?
The Franken campaign's latest legal filing has made official something that was widely expected to come in some form or another -- they are asking the election court to order the Coleman campaign to pay the costs for the contest, including a not-yet-specified amount of Franken's own legal fees.
So what exactly does this mean? Just how much would the Coleman camp be on the hook for, if the judges agreed?
The Star Tribune asked lead Franken lawyer Marc Elias if the campaign is asking just for fees related to the Pamela Howell dust-up, or the campaign's other legal expenses, too. "We're going to leave it to the court to decide that," said Elias. So for now, this appears to be up in the air.
The Franken filing asks: "costs of the contest must be paid by Contestants, and Contestee shall prove up his costs by affidavit." The issue here is that the election-contest statute has a loser-pays provision -- but it doesn't clearly state just how conservative or expansive the definition should be.
"I think it's unlikely that the court is really gonna stick it to Coleman," Professor Larry Jacobs, of the University of Minnesota, told TPM. "Because this is not a frivolous case. It's really encouraged in state law."
On the other hand, Professor David Schultz of Hamline University thinks the loser-pays provision is there to provide a serious disincentive to launching a contest, and could potentially be construed broadly. Taking a look at the types of cost involved, some or all could be granted while others might not.
The first category would be the costs for just the court itself. The plain language of the statute makes this one a seemingly certain call, and Schultz thinks it might be in the range of $150,000-$200,000. Next up are the outstanding costs to the state and local officials, which Schultz thought could be $100,000-$200,000 -- but which might just be a lowball estimate.
Deputy Secretary of State Jim Gelbmann told TPM that if we're counting all government costs, including the data requests that were already charged to the campaigns and paid for, Schultz's figure would be just a fraction of that. This does all depend on just how we count things, but the Franken campaign could potentially seek reimbursement from Coleman on their own share of already-paid government costs.
This would leave us with the costs from the local governments that didn't seek immediate payment, plus the costs for state and local officials who had to organize paperwork and travel to the courtroom to testify. For example, Gelbmann himself testified for two-and-a-half days.
The third category is Franken's own legal fees, which are not publicly available but Schultz thinks could be anywhere from $1-$3 million. Schultz told TPM that he researched election contests from other states, with a similar loser-pays provision as Minnesota's. And in those states, the attorney's fees are included in practice. Schultz sees this as a 50-50 proposition or better so we'll see how it works out -- the reality is that this case is both legal and political, and anything can happen.
Josh
Elana
Matt
Eric
If Franken's attorney fees get paid, would that money go into Franken's re-election campaign fund, or would the Franken donors get reimbursed?
March 18, 2009 2:25 PM | Reply | Permalink
Were Franken to recoup a large amount of his legal fees from Coleman, I believe it would be problematic for him to simply transfer that money to his campaign fund.
The reason is that campaign donations are highly regulated, while donations for legal defense funds are much less regulated.
Since any money gained from Coleman would simply be reimbursing Franken's previous legal-fund donations, the nature of those initial donations would likely be the measure of how the money could be used by Franken.
My guess is that there would be some very complex calculations made. Since Franken would be very unlikely to recoup all the money he's spent, Franken's lawyers would come up with some formula to assign percentages of reclaimed money to different pools.
Smaller donations coming under the campaign finance limits could probably be placed in his campaign fund. Money given outside the limits could either be returned to the donors or simply placed in Franken's legal fund. The percentage of money Franken gave from his own pockets could go back to Franken. Of course, being Franken's money he could certainly use it in any way he wished, including spending it on a future campaign.
This could potentially involve even further complexities. For instance, a distinction may even have to be made between money given for the recount and money given for the legal case.
All that said, while I do know the broad brush strokes of campaign law, I'm no expert as to the intricacies. This is all very much an educated guess.
March 18, 2009 3:27 PM | Reply | Permalink
Usually, the attorneys find a way to keep all of the money for themselves.
March 18, 2009 8:45 PM | Reply | Permalink
So, about $3-and-a-half million, probably on the low end. Since Coleman's electronic system's down, looks like he might be writing Coleman a cashier's check. I'm sure the banks could use the fees!
March 18, 2009 2:26 PM | Reply | Permalink
I'm envisioning the Coleman web site donation page a month from now:
Please donate so that I can pay Al Franken -- oh, and no credit cards, please! :)
March 18, 2009 2:35 PM | Reply | Permalink
Obviously, I've never seen a case exactly like this, but here in Minnesota, "costs" mean costs, and don't include fees. Fees are only awarded when there is a statutory provision that allows it. Here, the statute says costs and I very much doubt fees would be included.
March 18, 2009 2:57 PM | Reply | Permalink
Thank you for giving a MN understanding. This has been a question in my mind since this whole thing started and people were saying that Coleman would have to pay Franken's fees. Based on what you said and my reading of the relevant statutes, I just don't see a basis for an award of fees (other than relating to the sanction, for which fees will almost certainly be awarded -- however, those should be relatively modest, perhaps $10K?). Though there are policy arguments that cut both for and against shifting fees, I think the Court will defer to the legislature and say if they wanted to do it that way, they could have expressly written it into the statute. Because they did not do so, the Court will not likely make such an award.
I do think costs will be quite substantial, and should include any costs that Franken had to pay to government bodies for data requests.
On a side note, I wonder if any of the attorneys advised Cullen Sheehan about this possibility before they had him put his name on this suit. If not, I wonder if he could assert a malpractice claim against them and try to get the attorneys to cover any costs actually levied against him. I have never understood why they needed him as a party in this action as it never seemed to buy them anything (though, perhaps they wanted him to try to bolster an equal protection claim along the lines of Bush v. Gore that his vote was being diluted by the inclusion of allegedly illegal Franken votes).
March 18, 2009 3:28 PM | Reply | Permalink
I hadn't thought about Shaheen. That's kind of funny to think the judgment would be against him, too.
March 18, 2009 3:44 PM | Reply | Permalink
The suggestion (in the article above) that "costs" means all the expenses that the court actually incurred strikes me as a bit radical as well. I suspect that costs means only the specific, fixed costs imposed by statute or court rule (i.e., filing fees, witness fees at the statutory rate, etc.).
March 18, 2009 3:45 PM | Reply | Permalink
The cost of the "contest" is a tougher question than the attorneys fees issue. Obviously, in a normal civil case, the only recoverable costs are those allowed by the rules and statutes that relate to filing fees, copies, witnesses, etc. The cost of the court *itself* isn't included. That would be silly.
However, in this context the statute does say, "If the contestee succeeds, costs of the contest must be paid by the contestant." It does not say the "costs incurred by the contestee", which would be the equivalent of what we see in ordinary civil cases. The "cost of the contest" might be construed to be the cost of putting this whole thing on. Ironically, under this interpretation, the "cost of the contest" might not even be Franken's costs - those would more properly be identified as "contestee's costs".
March 18, 2009 3:54 PM | Reply | Permalink
Interesting. What statute or rule specifies "contestee's costs" or the equivalent? The cost taxing provision in Minnesota Rule of Civil Procedure 54.04 uses the phrase "costs and disbursements." Minn. Stat. 549.02 simply uses the term "costs." Those terms seemed equivalent to "costs of the contest" to me. (They are also similar to the Pennsylvania rule with which I am more familiar.) Thanks.
March 18, 2009 4:25 PM | Reply | Permalink
Well, there isn't any provision that specifically says, "contestee's costs". It just says "cost of the contest".
The statute that you cite, 549.02, specifically refers to costs as between the parties. Other parts of the rules and statutes allow for payment of costs related to copies, witnesses, and depositions used at trial, etc. And it is clear the the "prevailing party" gets these costs. We cost it "taxing costs".
My point is that the election contest statute doesn't use these types of terms. It just plain says, "costs of the contest." Thinking about this generally, my thought is to treat it like the way any ordinary civil case and award "costs" to the prevailing party. But the language is somewhat different. It might be said that the party that loses has to pay for the contest itself.
Again, just some thoughts on this. Clearly this issue is up in the air.
March 18, 2009 4:40 PM | Reply | Permalink
This is an interesting question. I do not think that the court will use it to deny Franken his costs.
Whether the court would expand it to include the court's costs (which, based on the March 2nd order, were estimated at $2,500 per day) is another question. Again, though, I think that the court is probably likely to take a moderate statute-driven approach and do it only if the statute expressly provides for it, which I don't see.
In the end, my best guess is that they will treat it similarly to the other cost shifting provisions.
March 18, 2009 4:46 PM | Reply | Permalink
I agree that the court will probably treat it like any ordinary cost award. Courts like to do what they are used to doing. You're right that the language is a bit different though.
March 18, 2009 4:51 PM | Reply | Permalink
RE: costs of the contest @ eric the red. I think you may be on to something. The analogous statute for recounts, 204C.35 Subd 2(b), explicitly refers to the government's costs. This may influence the interpretation of "costs of the contest" in 209.07 Subd 3.
March 19, 2009 9:40 AM | Reply | Permalink
In Pennsylvania as well, "costs" means costs, not attorney fees. From the fee litigation that I've handled, I was under the impression that was the general rule in other states.
March 18, 2009 3:14 PM | Reply | Permalink
Franken's legal team doesn't appear to agree with Professor Schultz's analysis either. Their filing relies on the cost provision in Minnesota's election law (Minn. Stat. § 209.07, subd. 3) only for an award of costs. The attorney fees are requested as a sanction for the discovery violation. That's essentially a request under Minnesota Rule of Civil Procedure 37.01(d)(1), which expressly allows an award of attorney fees.
Here's the relevant portion in Franken's proposed order (which is the only place where I can find any mention of fees):
March 18, 2009 3:32 PM | Reply | Permalink
I agree.
March 18, 2009 3:46 PM | Reply | Permalink
The decision to leave the specifics up to the court seems like a pretty smart one from a PR perspective. The Coleman campaign will undoubtedly try to paint the whole thing as an attempt to prevent him from pursuing his rights by bankrupting him. If the Franken campaign can truthfully say they're just following the law (and only trying to recover attorneys' fees in the case of clear misconduct) then, as with the mandatory recount, it helps make it clear how hysterical the Coleman claims actually are.
March 18, 2009 5:03 PM | Reply | Permalink
Even if the award is simply for costs and sanction fees, Coleman could owe many hundreds of thousands of dollars. Coleman is not wealthy, he's repeatedly mortgaged his house to fund his runs for office.
Will the court require Coleman to put this money in escrow before being allowed to appeal? Given Coleman's infinitesimal prospects of victory, one must seriously question Coleman's ability to raise the money.
The conventional wisdom among Democrats and Republicans is that this thing is over. Franken will win this case and Coleman's appeal won't even be taken up by the MN Supreme Court. The sole goal of many of Coleman's donors is to delay Franken's seating.
If forced to put money in escrow prior to an appeal, Coleman may face three massive challenges in raising the necessary funds.
1. Are national Republicans willing to put up many more hundreds of thousands of dollars for the sole purpose of delaying Senator Franken's swearing in by a mere 15 to 20 days?
2. One must believe that a significant proportion of Coleman's former donors must feel especially burned by Coleman's completely inept handling of their credit card data. Will the be willing to send him more money, this time by check? (Coleman no longer allows internet donations.)
3. Most importantly, will Republicans be willing to put money into an escrow account that will eventually be given to Al Franken?
If Coleman cannot raise the escrow money for an appeal, one would think Franken would immediately file for a judgment against the named contestants, Norm Coleman and Cullen Sheehan.
By this point, all delays would be over, Franken would be seated. I can't imagine national Republicans rallying around an effort to get Coleman out of trouble by (effectively) donating money directly to Al Franken.
If Coleman can't afford to appeal and can't convince Republicans to raise money for Al Franken, might Franken file for garnishment of Coleman's wages?
Talk about a comeuppance, ouch.
March 18, 2009 6:06 PM | Reply | Permalink
The statute only appears to require a $500 bond for the appeal. I don't think that they are going to impose an additional obligation on Coleman for him to start the appeal.
March 18, 2009 7:33 PM | Reply | Permalink
In the ECC's "Order on Contestees Motion to Strike"
http://www.mncourts.gov/Documents/2/Public/Civil/3209%20coleman%20franken/Order_on_Contestees_Motion_to_Strike.pdf
at the bottom of the final page is a relevant statement:
"Attorneys' fees incurred by Contestee are not awarded as part of this Order. If Contestants do not prevail in this election contest, the statute provides that Contestants must pay the fees and costs associated with this proceeding. If Contestants prevail in this election contest, then the Court will consider awarding Contestee's attorneys' fees and costs associated with the delay caused by Contestants' non-disclosure.
March 18, 2009 8:33 PM | Reply | Permalink
RE: footnote 2. See this thread at DKos:
http://www.dailykos.com/comments/2009/3/18/73327/4916/107#c107
March 19, 2009 9:43 AM | Reply | Permalink
Fees? Costs? Franken was declared the winner, and everything he had to pay in this case was a cost that he would not have incurred if Coleman had respected and accepted the electoral board.
Franken should not have to pay to prove that he won what the Electoral Board already said he won. Fees? Costs? What is the difference?
March 18, 2009 8:34 PM | Reply | Permalink
The automatic recount was not charged to either candidate. But once that was supposedly settled, Coleman should pay for all costs (fees!) since he is just creating a nuisance, and costing everyone for his and the GOP's folly.
March 18, 2009 8:39 PM | Reply | Permalink
Not to mention that he can't tap his old ATM--Nasser Kazeminy--anymore.
March 18, 2009 9:47 PM | Reply | Permalink