Minnesota Closing Arguments Tomorrow -- How Long Until The Very End?
Tomorrow is going to be a big day in the Minnesota trial: Closing arguments, which will then bring this whole phase of the court proceedings to an end, pending a ruling and subsequent appeals. And what happens next could be very long -- or not.
Lead attorney Joe Friedberg will do the closer for the former Republican Senator, and Franken attorney Kevin Hamilton will be delivering closing arguments for his side.
So what happens next? Hamline University professor David Schultz tells TPM that he now expects the court to probably rule at some point in the first week of April, with a declaration that Al Franken is the winner. From there, this goes into an appeals process at the state Supreme Court that could take perhaps two months -- and then there are the federal courts. So this could take from anywhere between early April, assuming no appeals, to all the way through Labor Day, with June as the ballpark middle figure.
"The lakes'll be fully melted before we have a U.S. Senator -- which is the opposite of when Hell freezes over," said Schultz. "Maybe when Hell thaws out, something like that."
On the other hand, Schultz poses a very interesting scenario, one that could bring the entire appeals process to a crashing halt and force the granting of a certificate of election.
The election-contest proceeding operates under a loser-pays system -- so if Coleman loses, his campaign committee would have to pay all the legal costs of Team Franken. Those numbers aren't publicly available, but Schultz estimates it at anywhere between $1-3 million.
And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal. "I think it's very likely -- not a certainty but very likely -- a court would agree with that," said Schultz, "for the Coleman campaign to provide the costs and legal fees."
And after some additional legal wrangling, a decision like this could effectively end it: "A one-two combination of asking for the escrow, and having the money dry up because of the credit-card problem, that could very well dictate how far he goes."
Josh
Elana
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Eric
Eric, somebody cited the statutes on this once. The appeal has a very short time line. I think 15 days to start it. You should look up the statutes.
I wager a decision on Monday and Franken is seated within 30 days from Monday. The federal action is immaterial. Once the supremes decide, franken is seated regardless of all the rest of the nonsense, which will then stop.
March 12, 2009 6:07 PM | Reply | Permalink
Coleman has 10 days to file his appeal. After that, the election court has 15 days to transfer the official record to the Minnesota Supreme Court. The relevant statutes are Minn. Stat. 209.09 subd. 2 and 209.10 subd. 4.
March 13, 2009 1:11 AM | Reply | Permalink
I'll bet that professor a lunch that a decision comes down at the latest next friday and probably on Monday. The judges will want to rule asap because of the vacant senate seat.
The appeal bond takes time and so would a decision on the attorneys fees. They'd have to do law and motion on the fees and render a decision on what is reasonable and enter a judgement on that accordingly. That would take a ton of time. Based on what I recall from the statutes that I read weeks ago, the timing for the appeal runs from the rendering of the decision and the issue is the issuance of a certificate. If the decision isn't final for appeal purposes until the rendering of the decision of fees, then that is a huge problem and will drag this out, unless franken waives, which he might do in this situation.
March 12, 2009 6:12 PM | Reply | Permalink
Republicans are such expert whiners. Could a Democrat have ever dragged this out so long?
March 12, 2009 6:22 PM | Reply | Permalink
I think the MN Supreme Court would order briefing, argument and issue a ruling expeditiously like they have on every other motion from this contest so far. End of April, it's all over.
March 12, 2009 6:22 PM | Reply | Permalink
Oooh...this gives credence to Coleman's claim that there was political shenanigans in that Franken was trying to poison his donor pool with the wikileak to cut off his funding. Of course it also gives credence to Coleman doing to to himself to try and blame Franken, either to raise money off of that smear, or to look for a way out of not appealing.
If Coleman is a considered a private citizen, why can't big business just cut him a huge check to delay Franken seating as long as possible though appeals since they'd be blocking the EFCA vote?
March 12, 2009 6:35 PM | Reply | Permalink
Of course they would pay it to delay. It's a no-brainer. However, I don't think it works that way. The statutes seemed to imply otherwise from what I recall. It's a fast time frame for appeal because of the ramifications of an elected office being kept vacant, which obviously is not a good thing.
March 12, 2009 6:38 PM | Reply | Permalink
Don't be so sure that cash strapped Republicans will be willing to pay the extraordinary price of an appeal.
1. Coleman is POOR. He's used multiple mortgages on his house to fund this and prior political campaigns. Neither he nor his wacky wife are independently wealthy. He needs to raise outside money to continue on with the appeal..
2. An appeal may only buy the Republicans another week or two of a Franken-less Senate. This because the Minnesota Supreme Court could very easily refuse the hear the appeal. Given the importance of this case to the State of Minnesota, this appeal will go to the top of the MNSC's docket. A refusal could happen within days of the appeal.
3. Coleman will probably need to raise close to 3 million dollars just to be allowed to file the appeal. It's going to be VERY difficult for Coleman to raise any more money from the wingnuts.
4. The clincher. Even top Republicans will privately admit that Franken is destined for eventual victory. Because any new money Republican give to Coleman will probably have to go into the court mandated escrow, it means that any money Republicans give now will almost certainly go to Al Franken!
Put the massive idiocy of the credit card breech on top of all this and it seems increasingly unlikely that Coleman will be able to raise enough money to continue to fund his own lawyers, let alone fund the escrow payment he'll probably be required to pay.
This thing could really, actually, finally be over.
March 12, 2009 8:29 PM | Reply | Permalink
A question and a comment:
Have or will either teams put on any rebuttal?
Seems like this court has issued a number of decisions late on Friday. Don't know if that's coincidence or trying to avoid media attention. We'll see if the final decision fits the pattern.
March 12, 2009 6:52 PM | Reply | Permalink
Rebuttal happened today (Thursday). Coleman tried to sneak in his stuff about how unfair everything is and was shut down: that boat already sailed. He then brought a couple of witnesses on. I'm not positive, but those witnesses didn't seem to bring anything to the conversation. Atty. Friedberg spends a lot of time dealing in hypotheticals and neglects to put into evidence all the "proofs" that would validate particular ballots. Today he addressed four voters issues, but failed to bring the polling place registers that would verify if they had voted in person on Nov. 4. Over the weeks several people with rejected absentees have done just that, so it's a vital piece of evidence.
Tomorrow both parties are bringing some outstanding paperwork. Franken's is several voter reg pages with county seals. Coleman's is today's offering minus all the junk he tried to sneak in with it. So housekeeping on Franken's part which will prove up a couple of more ballots, and a cleanup of today's paperwork for Coleman. It's entirely possible that Coleman's will need a little further refining because he keeps trying to enter stuff that's irrelevant or previously dismissed, or whatever.
Tomorrow is also the big finale as far as the two sides go. After that the judges have to go through the offerings on hundreds of ballots and decide which they are accepting and which not. Are you still registered if you move from apt. 10 to apt. 12? If the clerk watched you *not* sign your absentee ballot and didn't point it out, is your ballot good to go because it's not entirely your fault?
Actually, they many not need to do all that. If they look at Coleman's spreadsheet (and verify it's connection to reality), they may look at all that missing data, count the remainder, conclude it's less than however many Franken has after the recent additions, and call it. I don't actually think they'll do this, but they certainly could. Presuming they will count numbers of "proved" ballots, those ballots will need to be located and physically opened and recorded.
March 12, 2009 8:53 PM | Reply | Permalink
Thanks. I was curious about rebuttal also.
March 13, 2009 1:14 AM | Reply | Permalink
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From there, this goes into an appeals process at the state Supreme Court that could take perhaps two months -- and then there are the federal courts. So this could take from anywhere between early April, assuming no appeals, to all the way through Labor Day, with June as the ballpark middle figure.
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Regardless of whether Coleman attempts to take this to the federal court system, the Minnesota Supreme Court will go ahead and issue a certificate of election, which is all that's needed to seat Franken.
http://campaignsilo.firedoglake.com/2009/03/06/franken-coleman-update-03609-pm-edition-franken-wins-by-losing/
March 12, 2009 7:10 PM | Reply | Permalink
On timing, Coleman has 10 days to file a notice of appeal, and 15 days after the notice to get the record to the S.Ct. From there, I agree that it should be quick.
I am not sure about the bond argument. I am not an expert in MN law, but the statute says that he only has to post a $500 bond to start the appeal. Sec. 209.10(4). I hope that they are right, but I am just not sure. Hopefully a MN lawyer can point us all in the right direction.
One other problem, which others have pointed out, is that fees above $1000 require a noticed motion, which will occur long after the notice period expires. So, I am not sure how they can set the bond to include the fee award.
Again, is there a MN lawyer willing to opine on this?
March 12, 2009 8:33 PM | Reply | Permalink
Not being a Minnesota attorney, I can't answer your questions, but I have one of my own: What Minnesota statute would be the basis for a fee award? Minn. Stat. 209.07 subd. 3 provides for an award of costs, but doesn't mention fees. Is there an applicable fee-shifting statute elsewhere?
March 13, 2009 1:21 AM | Reply | Permalink
I had (and still have) the same question. Looks like "costs" only to me without fees. But, if you look at the Court's order on sanctions, the Court clearly thinks that fees will be awarded. Though, they do not discuss the authority for that assumption.
March 13, 2009 9:19 AM | Reply | Permalink
Me thinks Coleman will be busy if he appeals, after all he will flying down to TX in April with Kazeminy to face charges that he funneled money through his wife. Two court cases going on at the same time? I think Coleman is crazy, but not that crazy. Of course, maybe the RNC will pay for that one as well.
March 12, 2009 8:54 PM | Reply | Permalink
Correct me if I am wrong, but I don't think Coleman is charged with anything in either the Texas suit or the similar suit in the eastern court. I imagine charges could arise against Coleman in some future action, depending on what information comes out in the Kazeminy case, but the Texas suit is just against Kazeminy.
March 12, 2009 9:49 PM | Reply | Permalink
The legal fees being paid by Coleman are much more important than even this article mentions. This entire time, Sen. Franken (hah!) has basically been fundraising for his re-election war chest. Every dollar he's raised to pay for his legal fees will come right back to him when this is all over.
Republican's may have felt that dragging this out and keeping the 59th vote was important, but the fist full of cash Sen. Franken will walk away with is a suprising upside to this whole thing.
Maybe they could have gotten a slightly better deal on the stimulus if Sen. Franken was there...but I doubt it. Him not being seated yet really hasn't hindered a whole lot, that's for when Employee Free Choice or Health Care come up - which he may be in by then.
March 12, 2009 9:50 PM | Reply | Permalink
You're assuming that Franken will actually be able to collect his money.
If Coleman either doesn't file an appeal, or the court doesn't force Coleman put the money in escrow prior to his appeal, I don't think Franken is at all likely to get his money.
Coleman just doesn't have the cash. I very much doubt Coleman will be able to raise money that will be directly passed along to Franken.
I'm also not certain which entity would be on the hook for Franken's attorney fees. Would it be Coleman himself, or the Coleman Campaign. If it's the campaign, Coleman may be able to declare the entity insolvent.
If Coleman himself is on the hook, Franken may be able to get a judgment against Coleman. Talk about a fitting end to this thing, that would hurt.
March 12, 2009 10:46 PM | Reply | Permalink
Regarding who would actually be on the hook for Franken's attorney fees, I've just checked the official notice of contest. The litigants are Coleman himself (not his campaign) and his campaign manager, Cullen.
If the "Loser Pays" provisions are enforced, it appears that those two - Coleman and Cullen - would be the losers forced to pay.
One must wonder if Coleman's campaign manager knew what he was getting himself into when he agreed to be named an election contestant.
http://www.mncourts.gov/?page=3409&elr=KArks8c7PaP3E77K_3c::D3aDhUxWoW_oD:EaDUiacyKUUr
March 12, 2009 11:11 PM | Reply | Permalink
I don't think Coleman will end up owing Franken much. As far as I can tell, Minnesota election law requires the loser only to pay the "costs" of the election contest. Minn. Stat. 209.07 subd. 3. In statutes like this, the term "costs" is usually understood to mean only the court costs, which is a relatively small amount. It doesn't allow the prevailing party to recover the bulk of the money spent on litigation, which is the fees paid to attorneys. For that sort of recovery, the statute usually has to specify "fees" or "attorney fees".
March 13, 2009 1:04 AM | Reply | Permalink
There is an interesting footnote on the last page of an ECC order which states "If Contestants do not prevail in this election contest, the statue provides that Contestants must pay the fees and costs associated with this proceeding." This seems to address your "fees" which might mean attorneys fees. Go to the end of this document to see it.
http://www.mncourts.gov/Documents/2/Public/Civil/3209%20coleman%20franken/Order_on_Contestees_Motion_to_Strike.pdf
March 13, 2009 4:09 AM | Reply | Permalink
Can that include all the energy and bother we've wasted fretting over this case? I haven't documented my hours, but I know I'm not alone in wasting a lot of time following these proceedings. Who do we send the bill to?
March 13, 2009 8:03 AM | Reply | Permalink
I had read about that footnote, and you are correct that the election court states in it that the "statute" provides for a prevailing contestee to recover fees as well as costs. That footnote, however, is obiter dicta, and the court does not identify what statute it is relying upon. I haven't been able to find a fee-shifting statute in Minn. Stat. Chapt. 209 (relating to election contests). If you are aware of a provision that I've overlooked, or an applicable fee-shifting statute elsewhere, I'd welcome a correction.
March 13, 2009 8:39 AM | Reply | Permalink
That is why I used the terms "interesting" and "seems". They do not cite any specific statute, so that is why I do not know where they are coming from.
March 13, 2009 1:51 PM | Reply | Permalink