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Lead Coleman Lawyer: Franken Will Have Bigger Lead After Trial, Then Come Appeals
This isn't exactly optimism from Team Coleman.
Two days ago, lead Coleman lawyer Joe Friedberg appeared on a local talk-radio show in Minnesota, for a wide-ranging interview on everything from criminal defense to college football -- and oh yeah, that his client is going to lose the trial and then appeal:
Friedberg: We've been trying this case with the appeal record in mind, and that's where we're going. And it's gonna be a very quick appeal, and then I'll know whether or not it worked.
Rosenbaum: Well, when you say a quick appeal, are you confident that you're gonna lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.
Friedberg: I think that's probably correct -- that Franken will still be ahead, and probably by a little bit more. But our -- you know, our whole argument was a constitutional argument. And it's an argument which is really suited for the Minnesota Supreme Court, not for the trial court. So we'll see whether we were right or not.
On the bright side, the normally Democratic Friedberg did say that he promised Norm Coleman that in case there's a new election, he will vote for Norm this time.
Late Update: Professor Rick Hasen from Loyola Law School has this review of the Coleman legal argument: "In the end, Coleman doesn't have a strong equal-protection argument. Then again, most of us thought George W. Bush didn't, either."
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Eric
What Friedberg means is that he just doesn't care anymore, and that this is just a job that he gets paid for.
March 20, 2009 10:25 AM | Reply | Permalink
Dum de dum dum dum!
They lost. They don't even have anything on appeal. It's sad how comically incompetent they have been. They missed the crucial point: In races for federal offices, the only issue in an election contest is who got the most votes. The constitutional issues cannot be properly raised at all, even on appeal. The Minnesota Supreme Court will review the trial court's decision for any misapplication of state law as it is related to the counting of ballots. Constitutional issues won't be relevant.
To get to the Constitutional issues, he'll have to file another suit in federal court. But by that time, the appeal will be over, and Franken will have his election certificate. If Franken is sitting in the Senate, i.e. if the Senate accepts his certificate and thereby inherently judges the election returns to be proper, there won't be any recourse left for Coleman.
The whole thing is over, they just don't know it yet.
Dum de dum dum dum.
March 20, 2009 10:32 AM | Reply | Permalink
It sounds to me like the plan is to lose in the Minnesota Supreme Court and then petition the U.S. Supreme Court for cert. on their bogus constitutional issues, with a hail mary pass supercedeas petition to prevent Franken from getting his certificate pending appeal and SCOTUS's consideration of the cert petition.
Which is a long way of saying, the sole and entire objective has been to delay Franken's seating all along and it still is. Otherwise, they would have started that parallel federal litigation you mentioned, just like James Baker did when he was running Dubya's coup plot in Florida.
March 20, 2009 10:59 AM | Reply | Permalink
Probably correct. However, would the us supremes have the authority to stop the issuance of the certificate? I haven't thought that one all the way through.
March 20, 2009 11:02 AM | Reply | Permalink
Yep. Just like they have the power to stop executions while they consider an appeal (in the state supreme court) or cert. petition (in the U.S. Supreme Court).
In state civil matters where the loser is trying to postpone paying a money judgment until after trial, most states won't grant a stay on a judgment unless the puts up a bond or other security to make sure the judgment gets paid if the appeal is lost. In a case like this, however, where no one's suing for damages, if a bond is required at all, it'll be like a hundred bucks or a dollar or something.
March 20, 2009 11:11 AM | Reply | Permalink
On the other hand, Norm will have a hell of a hard time showing how he'd be irreparably harmed if Franken is seated conditionally pending appeal. They'll probably try to cook up some b.s. "public interest" argment that the people of the great state of Minnesota will be irreparably injured if some evil Democrat is allowed to represent them when, in fact, they elected a noble Republican and that harm is greater than the harm of not being represented at all.
That's why I referred to it as a "hail mary." If a court buys something like that, it will be purely political, not legal.
March 20, 2009 11:13 AM | Reply | Permalink
That's what I was thinking. Where's the irreparable harm warranting a stay? I don't see it. If anything, it cuts the other way as the state is being substantially harmed by not having a representative in the senate.
Also, notwithstanding the 4 hacks on the court, I would think kennedy wouldn't want to get the supremes involved in this, so it would be a 5-4 decision in any event.
March 20, 2009 11:22 AM | Reply | Permalink
You only need 4 votes to grant cert, and many people think that Kennedy wrote the per curiam in Bush v. Gore.
March 20, 2009 11:29 AM | Reply | Permalink
Do you only need 4 for a stay? If you do, then there is a problem
Also, this isn't bush v. gore. Totally different situation to be frank. It's not the president and a long delay concerning naming a new president, it's a senator. I say it's apples and oranges. Also, bush v. gore was stopping the recount, not ignoring a recount that has been completed. By the way, I am not in any way in favor of what happened in bush v. gore, just so its clear.
March 20, 2009 11:33 AM | Reply | Permalink
I misunderstood what you were saying. I'm fairly certain, however, that you can get a temporary stay with less than 5 votes. The justices are individually responsible for different circuits and can't they individually grant stays until the court can consider the cert petition? I thought that was how it worked, but I could be wrong.
It's not bush v. gore, but that's what they're arguing. My point is just that Kennedy may be more sympathetic to an equal protection argument in an election case than one might think.
March 20, 2009 11:44 AM | Reply | Permalink
Not sure, but I would think that you would need a majority for a stay. It would give too much power to one justice and in the death penalty situation the "liberal" justices would always grant a stay and we would hear about it all the time. Come to think of it, since there are four "liberal" justices you would probably get stays all the time if it only took four.
March 20, 2009 11:47 AM | Reply | Permalink
My hazy recollection (I haven't filed anything with SCOTUS for close to a decade and that was only a response to a cert petition that was never going to be granted in the first place) is that the justice assigned to your circuit can grant a stay while the court considers the petition but my recollection of what happens after that is nil.
March 20, 2009 11:47 AM | Reply | Permalink
Really? I haven't done any supremes work. Seems that it gives alot of authority to one judge to stay something. Now in my state appellate work, you need to file a petition for a stay that is decided by the panel, not just a single judge, which I would think would be the same type of situation with the supremes.
March 20, 2009 11:53 AM | Reply | Permalink
Well, if you're right, then franken won't get seated until the summer at the earliest. The us justice assigned to minnesota is none other than scalito. How disappointing.
March 20, 2009 11:58 AM | Reply | Permalink
You are right, scalito will decide whether or not to issue a stay. He has the power to do it himself. Franken won't be seated until the summer at the earliest.
Marvelous, just marvelous.
March 20, 2009 12:09 PM | Reply | Permalink
"If a court buys something like that, it will be purely political, not legal."
Yeah. Thank God the US Supreme Court would never do something like that.
March 20, 2009 11:35 AM | Reply | Permalink
Yep. One would hope that they'd take note of how swimmingly it worked out last time, but I see no reason for optimism.
March 20, 2009 11:43 AM | Reply | Permalink
Oh I think the "conservative" judges think it worked out quite swimmingly. Their side picked up a couple knee jerk (and I do mean jerks) wingnuts. Does any one think Gore...? Well you get my drift.
March 20, 2009 2:53 PM | Reply | Permalink
From everything I have seen--and I've read most of the court documents--they actually think they have a winning constitutional argument, and it was, as Friedberg says, their plan all along to use this as a way of attacking the election. It sounds like they're playing a delay offense, but that's not what I see.
In any case, the Minn. S.Ct. has already basically said that when the state litigation is done, the winner will get the certificate. The problem for Coleman is that he doesn't have a federal issue on which to appeal. The contest court has all but summarily rejected his constitutional arguments on the grounds, essentially, that they are a court of limited jurisdiction that is not competent to hear the constitutional equal protection claim that he is raising. The only remaining issues on appeal will be entirely based in state law.
March 20, 2009 11:20 AM | Reply | Permalink
The constitutional issue that the trial court said its not jurisdictionally competent to hear would be the federal issue that gets them to the Supremes.
March 20, 2009 11:50 AM | Reply | Permalink
If the ECC decides it doesn't have jurisdiction to consider and decide the equal protection argument, then it can't be decided as part of the election contest. That means it would have to be pursued separately as part of a collateral federal lawsuit, and not as part of an appeal to the MN S. Ct.
That is a whole different legal adventure that one would have to wonder whether or not Coleman could afford. If he loses in the ECC and the MN S. Ct., his money could dry up very quickly. Then again, he is being entirely bankrolled by the GOP. Though his name is nominally on the lawsuit, the GOP is the one deciding where to drive it. So I guess it all depends on whether and when they decide enough is enough.
March 20, 2009 1:38 PM | Reply | Permalink
I'm talking about U.S. Supreme Court. You can get there from the Minnesota Supreme Court 28 U.S.C. ยง 1257(a).
And they're not going to be appealing to the SCOTUS from the Minn S.Ct., i.e. arguing that the Minnesota court made some error in the application of Minnesota law. They're going to be petitioning for certiorari, i.e. arguing that the entire state statutory scheme is unconstitutional and/or that some U.S. constitutional right was impinged by its application in this case.
March 20, 2009 5:36 PM | Reply | Permalink
I understand what a writ of certiorari is.
I said if the ECC decides it doesn't have jurisdiction to decide questions of equal protection, that's not appealable to the SCOTUS. That's very specifically a question of state law, as it's a state statute that defines the ECC's jurisdiction.
There would be no federal constitutional question for which to apply for cert.
See also my comment near the bottom of this thread explaining that Coleman has actually teed up two separate equal protection arguments.
March 21, 2009 7:39 AM | Reply | Permalink
Once Franken's certificate of election is issued, the matter then rests with the Senate under Sec. I, Article 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own members..." The Supreme Court cannot cancel that constitutional provision and Franken's place in the Senate would be secured.
March 20, 2009 12:05 PM | Reply | Permalink
There was a good disussion above about stays. If the Supremes issue a stay telling the state not to certify (and beat them to punch, i.e., do this before certification occurs), then we don't get to your issue.
March 20, 2009 12:14 PM | Reply | Permalink
Unfortunately, the republican governor has to sign the certification. I guarantee that he won't sign before scalito issues a stay. We're looking at summer at the earliest for seating franken.
March 20, 2009 12:30 PM | Reply | Permalink
My but you are *crass* to assume they would play politics as to Associate Justice Scalito, Sir!
:)
March 20, 2009 12:33 PM | Reply | Permalink
The contest court is specifically authorized to direct the official responsible to issue the certificate.
In any case, this is what mandamus is for.
March 20, 2009 1:47 PM | Reply | Permalink
True, but the point is that the gov won't be rushing to sign that certificate and will give them time to file their petition for cert and for scalito to stay the signing of the cert pending a decision by the supremes. I bet they already have the petition prepared and ready to go incidentally. They know that they are going to lose in minnesota, so they are gearing up to go to the supremes.
March 20, 2009 1:59 PM | Reply | Permalink
I suspect you are correct that the attorneys are not employing just a "delaying strategy".
I would think they are focused on strategies and tactics to meet the instructions of their client to somehow win this case.
The delaying strategy, and I believe there probably is one, is driven by those who are funding the client.
When the funding goes away, the client and attorneys will go away.
Attorneys are no different than any other service profession. They will work to satisfy their customers until there is absolutely nothing else that can be done - or until they stop being compensated for their services.
March 22, 2009 2:50 PM | Reply | Permalink
After appeal, not trial.
March 20, 2009 11:39 AM | Reply | Permalink
Appeal to the U.S. Supreme Court? The justices would have to be absurd. They made a political decision once, back in 2000 when everyone's guard was down and the country wasn't engaged politically, and look how well that turned out.
But to void an election result again in this hyperpoliticized climate, risk the wrath of a very unhappy citizenry that overwhelmingly blames the Supremes' choice in 2000 for the problems we face now -- and further, do it on behalf of an oily vulture like Norm Coleman? I'm sorry, not a chance.
March 20, 2009 3:54 PM | Reply | Permalink
I am inclined to agree to a point. Seems like Scalia may issue the stay pending review of the cert petition. Review will take as long as it can, but will ultimately be denied.
March 20, 2009 8:27 PM | Reply | Permalink
I'm surprised that we don't have a ruling yet. I thought for sure that we would have it by today at the latest. Oh, well. Luckily there is nothing pressing right now that we need franken's vote. The sooner that this fiasco is over, the better.
March 20, 2009 10:47 AM | Reply | Permalink
Coleman picks a Democrat to do his bidding? Couldn't find a competent Repub? Wierd. Of course, for every lost Friedburg vote there will be 3 disgruntled Minnesota Franken voters if Coleman get his wish and there is a "revote."
March 20, 2009 10:50 AM | Reply | Permalink
Though a Democrat, Friedberg is a close, personal friend of Coleman. He actually voted for Franken in the election.
March 20, 2009 12:15 PM | Reply | Permalink
If I remember correctly, Coleman USED to be a Democrat. So maybe a friend from those days?
March 20, 2009 2:09 PM | Reply | Permalink
If their argument is more suited to the MN Supreme Court, why did they just waste two months arguing every nook and cranny in front of the trial court?
March 20, 2009 10:54 AM | Reply | Permalink
In order to make the record for purposes of the appeal. Without a trial court record you have nothing to appeal.
March 20, 2009 10:59 AM | Reply | Permalink
Because you can't get to an appellate court until a trial court has entered a judgment. An "appeal" is an argument to an appellate court that the trial court made an error that made a difference, or likely made a difference, to the outcome.
If you put on no evidence at trial, there's nothing to appeal because the trial court will be legally compelled to enter judgment against you. As a practical matter, the more evidence you put on at trial, the more opportunities you create for the trial court to make an appealable mistake.
March 20, 2009 11:04 AM | Reply | Permalink
Here's a fantasy!
The MN Supreme Court looks at the witness tampering and evidence tampering and gives it to Franken. The Coleman attorneys are censured for their misconduct. :-{)>
March 20, 2009 1:12 PM | Reply | Permalink
What they said, as well as it's two months that Franken was not allowed to take his seat. If they could get away with reading the phone book in court for six years they'd do it.
March 20, 2009 11:11 AM | Reply | Permalink
That line about the Supreme Court being more suitable for a constitutional argument is a crock. Trial courts have to hear and decide the constitutional issues for it to be preserved on appeal. They do the constitution all the time.
What the trial court already said, if memory serves, is that the statute precludes any consideration of evidence or issues outside of who had the most votes, and that even if it were relevant, the election was not fundamentally flawed.
The trial court knows how to handle these issues.
March 20, 2009 1:03 PM | Reply | Permalink
There is nothing more litigious than a Republican candidate who has been rejected by the voters.
March 20, 2009 11:05 AM | Reply | Permalink
After appeals to the Minnesota Supreme Court and USSC, Team Coleman will file an appeal with the Imperial Galagtic Court on the planet Voltana in the 3rd quadrant of the Andromeda system.
March 20, 2009 11:12 AM | Reply | Permalink
Yes, and these extremely conservative Voltana judges were appointed by Darth Cheney from his black hole that he renamed Jackson Hole for some spaced-out reason. Regardless, they have an affinity for toothy Coleman lifeforms.
March 20, 2009 1:44 PM | Reply | Permalink
This story gets ZERO, ZERO natl press coverage.
It is outrageous that Repubs are straight-out saying that they want Coleman to drag this out while meanwhile the U.S. is down 1 U.S. Senator and MN is missing 1/2 its Senate representation.
This is outrageous and because the MSM is basically TMZ about politics, nothing gets reported.
March 20, 2009 11:14 AM | Reply | Permalink
If it's not a gooper bullet point, it's not fit for the traditional press...
March 20, 2009 12:43 PM | Reply | Permalink
Enough! It's time for the state of Minnesota to shut this down and select Franken as the winner. Why? He's got the votes. Enough bulls**t, already. Time for the grown-ups...
March 20, 2009 11:29 AM | Reply | Permalink
Grownups don't demand arbitrary and illegal state abrogations of due process of law. That would be what those guys in the shiny knee-high hobnailed boots do. (What are those guys called again? Can't quite seem to recall.)
March 20, 2009 11:54 AM | Reply | Permalink
Just then, Justice Scalia was seen entering stage left, lookig for all the world like Cruella de Ville, coming to steal the puppies1
March 20, 2009 12:42 PM | Reply | Permalink
Incidentally, scalito is a slam on alito. Alito is a scalia clone, so he has been referred to as scalito. Sorry for the confusion. Alito is the hack that would stay the certification.
March 20, 2009 1:56 PM | Reply | Permalink
I wasn't confused and I got it the first time, but I guess I created confusion by mentioning that odious Scalia himself.
I think they've got a real good shot at up to four votes for any kind of mayhem they can come up with (I've said this before), Scalia, Thomas, "Scalito," *maybe* Kennedy. It's harder for me to see Roberts throwing his reputation down the john over some tawdry abuse like this.
March 20, 2009 3:26 PM | Reply | Permalink
Oops, my bad. Sorry. By the way, on roberts, I thought what you are thinking now during his confirmation. Unfortunately, since he has parked his fat a** on the bench he has revealed that he is no better than the other three wingnuts on the bench. Our only hope is kennedy, which is frightening to say the least. Roberts stand on gitmo sealed it for me that he doesn't care about his rep or legacy. He is sucking at the teet of the republican party for the next 30 years or more. What a nightmare.
March 20, 2009 4:25 PM | Reply | Permalink
Wow...
March 20, 2009 6:33 PM | Reply | Permalink
Okay, wait. You mean they're really different people? I thought it was just some unusually creepy ventrolquist act.
March 20, 2009 5:40 PM | Reply | Permalink
Agreed that Scalito is appropriately named. But should we leave out Scomas?
March 22, 2009 4:14 PM | Reply | Permalink
IANAL but in watching the trial on The Uptake.org and watching the live chat as it was going on, some of the others watching and chatting were lawyers. My understanding of what they said is that once the MNSC rules, its not that decision that gets appealed. A separate suit would have to be filed in Federal Court, raising the unequal protection claim, not with Coleman as the injured party but the voters, and it is that suit that would work it's way through Federal Appeals courts and on its way to the SC. Once again, IANAL so I could be entirely wrong about this.
March 20, 2009 11:52 AM | Reply | Permalink
I also listened, but didn't read live chat (I was working on a painting project at the time), so I missed that. Did the chatters indicate whether they agreed that a federal appeal could stall the issuing of a certificate?
Perhaps the question is actually whether it is financially reasonable for the Republicans to continue to pay through the nose balanced against what they gain by Franken's absence in the Senate?
If nothing else, this whole fiasco should be a cautionary tale to every other state to have a good look at their election practices. I suspect my state (CA) doesn't run as clean an election process as MN does.
March 20, 2009 12:17 PM | Reply | Permalink
There is a difference between a federal appeal, and a collateral lawsuit in federal district court.
The appeals for the contest go first to the MN S. Ct., and then the SCOTUS has discretion to review the MN S. Ct. decision. A separate federal lawsuit would start in the federal district court and go through the 8th circuit to SCOTUS.
Coleman has staged what appears to be two separate equal protection complaints. First, that different counties treated similar ballots differently, and second that the ECC itself treated similar ballots differently than they were treated in the general election. Neither one is a winning argument, but unfortunately you don't have to be a winner to file a lawsuit or seek an injunction.
Coleman has the option to seek review in SCOTUS of the MN S. Ct. decision, where they will argue and lose the second of their equal protection theories, but they still have available to them a federal lawsuit based on the first theory (in the event that the ECC decides it doesn't have jurisdiction to decide it).
Clear as mud?
March 20, 2009 1:46 PM | Reply | Permalink
Good explanation. My prediction - Supreme Court refuses to hear a petition for cert from the Minnesota Supreme Court's affirmance of the election panel decision. The Court doesn't want another Bush v. Gore (and especially not Chief Justice Roberts). Coleman can file an action in federal court and then appeal an adverse ruling but even then the SCOTUS doesn't have to hear a petition from an adverse appellate court ruling.
Alito isn't going to issue a stay of the certification.
March 20, 2009 4:58 PM | Reply | Permalink
So Coleman was just trying out his eventual Supreme Court argument in front of these judges to get the full counter-argument heard and prepare for it.
Lovely that the judges decided to play along.
March 20, 2009 12:08 PM | Reply | Permalink
I guess what it really comes down to is a case of political will. Does the Senate have the cojones to tell the SCROTUM I mean SCOTUS to go screw? Or not? I can't wait to see what happens, my money right now is on SCROTUM I mean SCOTUS but it's possible the Senate Dems will FINALLY grow tired of having their power usurped and move to reclaim it.
March 20, 2009 12:48 PM | Reply | Permalink
Coleman will run out of money long before this ever goes to the Supreme Court.
March 20, 2009 12:58 PM | Reply | Permalink
Legal expert Richard Hasen had a great analysis up on Slate yesterday. Here's an excerpt:
http://www.slate.com/id/2214074/pagenum/all/#p2
March 20, 2009 1:05 PM | Reply | Permalink
So if Coleman is setting up an appeal to SCOTUS on "constitutional" grounds, as seems to be the consensus above, and those grounds are essentially Bush v Gore, as they themselves have made pretty clear, doesn't this amount to asking the Supremes to rescind the part of BvG that claimed it was a one-off decision for the nonce only etc etc etc?
Even granting that BvG was an all but nakedly political decision (as the notorious escape clause all but explicitly acknowledges), is that really a fig leaf they would want or could afford to remove?
Put it another way, isn't Coleman all but explicitly asking the Supremes to further undermine their own credibility in one of recent history's most nefarious decisions on his behalf? Pretty goddamn arrogant and presumptuous from *their* point of view, I should think.
March 20, 2009 1:08 PM | Reply | Permalink
Norm can only hope that some Activist Judges will help him.
March 20, 2009 1:10 PM | Reply | Permalink
And this would be one of those frivolous lawsuits to boot.
March 20, 2009 1:39 PM | Reply | Permalink
Walter Mitty,
If the election contest judges hadn't "played along" then that would have been a likely avenue of appeal for Colman.
From what I have read, the judges in this case seem to be doing an excellent job. While the delaying tactics of team Colman are certainly frustrating, the judges have made sure that team Colman has all the rope it needs to hang itself.
March 20, 2009 1:12 PM | Reply | Permalink
But if he's going to appeal anyways, why drag out the trial for months? Essentially giving Coleman what he wants (outside of giving him more votes).
March 20, 2009 1:26 PM | Reply | Permalink
Because that's the difference between an appeal Coleman could win and an appeal he's going to lose. Cutting him off before he's done prsenting evidence because the judges "know" he's just going to appeal is called "reversible error." The remedy is a new trial.
If you please a claim properly and can demonstrate that there is a contested issue of fact, you get to have your day in court--and that "day" is basically as long as it takes for you to present our case. That applies even to people who are complete useless assholes. That's part of that "equal protection" think people keep talking about. The court has some limited power to hurry you along if you are truly wasting time, but "wasting time" has a rather narrow meaning in this context. And, in any case, the more the court uses its limited power to move things along, the more likely it is to be held to have committed legal error on appellate review.
March 20, 2009 5:50 PM | Reply | Permalink
How interesting that even the attorney of Mr. Coleman admits that Franken won the election but still he plans an appeal. Amazing that Republicans have so little respect for the electorate that they would rather the State be without representation in the Senate just because of the Coleman snit. As a former Republican, the National Party's silence in this situation and os many other responses reflect exactly why I am now happily a registered Democrat. At this rate, Americans will leave the Republican party in droves. Sad to see the horrors of the present Republican Party. So many Republicans with no concern for the well-being of our country.
March 20, 2009 6:56 PM | Reply | Permalink
So it's the MN Supreme Court, then the US Supreme Court? Oy vey.
But with Bush v Gore, Bush was ahead and then Scalia & Co. stopped the recount, right? So in this case they couldn't just award the election to Colemen, right? What's the worst that the US Supremes could do to us? Force a new election?
March 21, 2009 10:31 PM | Reply | Permalink