Coleman Gearing Up For Appeals: "This Is Not Judicial Fast Food"
Norm Coleman and the GOP are continuing to lay the groundwork to keep this drawn-out legal process going even longer, as the election court is to rule some time fairly soon that Al Franken is the winner of the race.
Norm appeared on Fox News today:
Norm reminded viewers that there will not be a certificate of election right after the court rules, as it will have to be appealed to the Minnesota Supreme Court: "Listen, it's taken a long time, but this is not judicial fast food."
Coleman was also in Washington yesterday, meeting with the NRSC. MinnPost.com caught up with him, and he reiterated that the case won't be over soon. "Election certificates are issued at the conclusion of the legal process, and the legal process...certainly won't be concluded at least until the Minnesota Supreme Court has a chance to review these issues," said Norm -- seeming to leave the door open to preventing a certificate from coming even after the state Supreme Court rules.
And a delay of that signature really does appear to be what the GOP will be seeking. Coleman's legal spokesman Ben Ginsberg alluded to this on Tuesday, and NRSC chairman John Cornyn -- who has predicted that the case could last "years" -- has said that any federal court should issue a stay against issuing a certificate.
"As a former judge, I can tell you I don't think a court would likely allow that to happen," Cornyn told the Politico, "because it would essentially moot the case without giving them a chance to decide it. So I think it's more likely a court would issue a stay in order to preserve the question for a decision."
Contra Cornyn, there is in fact precedent for certificates of election being issued despite a losing candidate contesting the results. For example, Senate candidate Woody Jenkins (R-LA) vigorously disputed his narrow 1996 loss to Democrat Mary Landrieu, but she was issued a certificate and provisionally seated the whole time -- and the Senate was controlled by the Republicans back then, too.
Also of interest, Professor Rick Hasen of Loyola has a new run-down of the likely twists and turns this case could continue to take in the judicial system, ranging from expedited appeals at the U.S. Supreme Court to drawn-out litigation of Coleman's constitutional complaints. Hasen doesn't think Coleman's case has any real validity here, but we'll see how it plays out.
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Ok, I hope the franken legal team has a petition for writ of mandate and emergency relief to get the governor to immediately issue the certificate after the election court ruling. That will force coleman to immediately file his one page appeal to the supremes and shave ten days off of this delaying tactic. I'm sure the supremes are itching to get this thing resolved as quickly as possible. Team franken has to give them the opportunity to do so.
April 3, 2009 2:16 PM | Reply | Permalink
I like the idea of Franken being aggressive, but I doubt that would work. Even if Franken convinced the MNSCT to hear an emergency petition within 10 days (which I doubt), MN case law holds that the certificate shall be issued only after the appeal period has expired. Fitzgerald v. Morlock, 120 NW2d 336 (Minn. 1963).
I'd rather see Franken assert himself by blitzing the talkshows. The court of last resort here is the US Senate, and the Senate will be influenced by public opinion. I would think that the more that the Franken team does to frame the debate as: "Is Coleman a sore loser?", the harder he will make it for the Republicans to maintain party unity for a filibuster.
April 3, 2009 3:27 PM | Reply | Permalink
Well, that's a problem. The strategy would not work if that is the case law. Basically, there is a stay for the ten day appeal period. No appeal filed, certificate issued. Appeal filed, then we have to wait even longer. I still think that the supremes will expedite this as quickly as possible though. This situation is a huge black eye for minnesota and minnesota is at 50% strength in the senate, which obviously is not good for the state.
April 3, 2009 3:44 PM | Reply | Permalink
Writ of mandate? Is that what they call a writ of mandamus in Minnesota?
But speaking of writs, I'm confused. I would have thought that the trial court would enter judgment for Franken and that the certificate would then issue unless Quimby moved for, and the Minnesota Supremes issued, a writ of supersedeas. As a practical matter, I was expecting that Franken would have to get a writ of mandamus (or mandate, or whatever they call it there) to force the the Republican-controlled state government to do it, but Quimby here is talking like issuance is stayed by law until the Supreme Court has reviewed it.
Could somebody who actually knows what the relevant statutes say help me out here?
April 3, 2009 3:46 PM | Reply | Permalink
I don't have them, but somebody linked to them a couple of weeks ago. Coleman has ten days to appeal to the minn supremes. Apparently, the case law is that no certificate is issued until the appeal process is exhausted, so in essence there is a ten day stay. No appeal filed at the end of ten days, certificate issued. Appeal filed, no certificate issued until supreme court decides.
I don't know what they call it in minnesota. In cali, it's a writ of mandate for short. Same as mandamus though.
April 3, 2009 3:54 PM | Reply | Permalink
MInnesota election laws are available from the MN Sec. of State.
The relevant sections are 209.09 subd. 2 and 209.10 subd. 4. Also, take note of Fitzgerald v. Morlock, which is a case mentioned in the annotations to 209.07.
April 3, 2009 4:16 PM | Reply | Permalink
Here are the links:
http://www.sos.state.mn.us/home/index.asp?page=224
http://www.sos.state.mn.us/docs/2008_chapter_209_-_6-24-2008_final.pdf
April 3, 2009 9:06 PM | Reply | Permalink
...lying out his ass as usual. Fortunately, Senator, most judges aren't as corrupt as you were.
April 3, 2009 3:01 PM | Reply | Permalink
Oh, you don't know those "judges" from texas. They are as corrupt as any republican politician. They run for election and have to get "campaign contributions", which is code for payoffs.
April 3, 2009 3:06 PM | Reply | Permalink
John Cornyn was a Justice on the Texas Supreme Court. So was Alberto Gonzales. I think that says it all.
April 3, 2009 3:34 PM | Reply | Permalink
I would be great for Harry Reid to grab this by the balls with the power of the Senate to seat at its ultimate discretion. A filibuster of this could be dismissed as purely political and deservedly so. The public does not give a shit about silly rules. A vote of 58 to 41 is a big winner in any game. Cry if you want to no one will listen. After the Supremes stole the 2000 vote for Bush in reality, why oh why would it be too much for Reid and the Senate Dems to grab a little power when they are in fact correct on substance? Franken won for xrists sake and who doesn't know it? This is not an endless public trial with endless benefit of the doubt. Leadership and Justice require boldness and risk. Harry Reid, do or bye.
April 4, 2009 2:27 AM | Reply | Permalink
It may not be judicial fast food, but if there's any cosmic justice Norm will be serving fast food sometime after this is all over.
April 3, 2009 3:16 PM | Reply | Permalink
Remember that thing about Franken asking (demanding?) that Coleman establish a fund of some sort that would guarantee that when he loses, he pays? I can't remember the details, but I'm hoping Franken's attys are working on the legal papers right now to be filed the minute the court rules on this contest. He can squawk all he wants, but he has to put the money up front as I recall, and if he can't, he can't appeal to the MNSC. I could go for that.
April 3, 2009 3:33 PM | Reply | Permalink
----
"Listen, it's taken a long time, but this is not judicial fast food."
----
I'll bet the NSRC fed Norm that talking point. Regardless, it's the people of Minnesota that chewed Norm up and spat him out.
April 3, 2009 3:34 PM | Reply | Permalink
MN-Sen: What is Norm Coleman's End Game?
by: Senate Guru
Fri Apr 03, 2009 at 13:01 PM EDT
People who live in the world of logic and reason might wonder what Republican Norm Coleman's end game is, as - logically and reasonably speaking - it is not clear.
The three-judge panel is making it abundantly clear that their ruling will not result in Norm Coleman being a U.S. Senator. Further, the flimsy "equal protection" arguments that Coleman's lawyers are making seem suited for a federal appeal rather than an appeal to the state Supreme Court, which would be the first appeal to come after Coleman loses at the hands of the three-judge panel. Clearly, Coleman's handlers are looking at dragging this out for as long as possible, an impression supported by NRSC Chair John Cornyn's comment that seating Minnesota's second Senator could take "years." Maybe Norm Coleman's goal is not winning back his U.S. Senate seat.
Elsewhere, those who follow Minnesota politics closely suggest that Coleman dragging out the appeal could damage his reputation and ruin any chances at a future political run, particularly a gubernatorial bid if current GOP Gov. Tim Pawlenty passes on a run for another term so that he can focus on a Presidential bid. Maybe Norm Coleman's goal is not setting himself up for a guberntorial bid (or any other future political campaign).
A U.S. Senator's salary is $169,300 and the Minnesota Governor's salary is $120,303. At the same time, we know that, over the years, Coleman treated his home like an ATM, refinancing or otherwise altering the terms of his mortgage a dozen times in thirteen years, culminating in a $775,000 mortgage two years ago. Add to it Coleman's massive legal fees, including legal fees that can't legally (at this point) be paid for by campaign funds, and we see that Norm Coleman has a mountain of personal debt. Sure, Coleman did not pay for a lot of things himself over the years, but he still has this enormous pile of debt. And Coleman is not a millionaire.
My very simple theory is this. Norm Coleman has personal debts (and will continue to grow that debt through additional legal bills) that may very well approach one million dollars. Coleman turns 60 years old this August. There is no way that Coleman can pay off his debts (including that 30-year mortgage for $775,000 that Coleman took out just two years ago) on a Senator's or Governor's salary. And I don't think Coleman plans on paying that mortgage every month until he is 88 years old. Simply put, Coleman needs a very high-paying salary. I'm not an accountant, but, if Coleman wants to enjoy his retirement years and not worry about that massive debt he has accrued, he'll need to start making salary of around half a million dollars a year - which means having conservative power brokers (who are pleased with his efforts to keep another Democrat out of the Senate) hook him up with a lucrative lobbying gig.
There you have Coleman's real end game. It's not to win back his Senate seat or serve the public in any way. Norm Coleman's end game is to intentionally force Minnesotans to be underrepresented in the U.S. Senate for as long as possible through endless appeals of the election result and parlay that into subsequently securing a high paying lobbyist job for a special interest that could care less what the average Minnesota family needs. However cynical this may sound, it is, quite frankly, the most logical conclusion based on Coleman's actions. We'll see.
http://www.senateguru.com/diary/626/mnsen-what-...
April 3, 2009 3:34 PM | Reply | Permalink
I think Coleman's endgame is re-election to the Senate, using the 1974 New Hampshire Senate race as a model. In that case, the Senate deadlocked for 7 months before eventually agreeing to a re-vote. So Coleman's goal is to cast enough doubt on the legitimacy of the election results to enable Republican party leaders to maintain party unity and filibuster the seating of Franken. Republicans will agree that Minnesota needs 2 senators and will present a re-vote as a compromise. Eventually, Harry Reid will cave.
As I see it, the success of that strategy depends largely on which candidate most successfully manages the national media. If the media frames the debate as: "Is Coleman a sore loser?", then I would think that Republicans would struggle to maintain unity. But if the media frames the debate as: "Was the election fair?", then I think the Republicans will find it easier to keep the less radical members of their caucus in line.
April 3, 2009 4:01 PM | Reply | Permalink
This will not drag on for year's despite Cornyn's hopes, but Coleman could easily keep it going for months. After the MNSCT slaps him down, he has 10 days to file a petition for rehearing; that will stay the judgment until the petition is disposed of (and it will be summarily denied). Next up: Coleman moves the USSCT for a stay of the state court mandate pending filing and disposition of his cert petition. That motion will go to the single justice assigned to the 8th Circuit: Sam Alito! Coleman could get then get 90 days (post-Minn. disposition) to file his cert position; Franken 30 to file an opposition. So, if Alito grants a stay Coleman could hang on another 4 months after the Minn. courts are done, even if cert is eventually denied. And if cert is granted -- well, maybe it would be years!
April 3, 2009 4:15 PM | Reply | Permalink
"If" scalito grants a stay? You are kidding right. There is no way that he doesn't grant a stay. Not in a million years. That would impact on his haliburton retirement plan. Of course, he grants a stay.
April 3, 2009 4:32 PM | Reply | Permalink
You're right - I spoke hypothetically regarding the USSCT, but with some reasonable certainty regarding the MNSCT. Coleman & Co. probably share your assessment of the likelihood of a stay pending cert, so I expect Norm will not bow out before giving cert a shot.
I also am fairly certain that a collateral action is not going to fly. The only half-way plausible claim is equal protection, and Coleman has argued it in the election contest. I do not believe any of the federal district court judges in Minnesota would entertain a collateral attack under these circumstances.
April 3, 2009 4:57 PM | Reply | Permalink
I would be surprised if even Justice Alito would grant a stay here. I just don't see a viable argument that the standard is met. Where is the irreparable injury? The certificate doesn't automatically result in Franken being seated, and the decision about how to act on any certificate is expressly assigned to the Senate by the Constitution.
Also, are you certain that there is a judgment in MN election contests to be stayed? I would have expected the panel to simply issue an order dismissing the contest and then the MNSCT issue an order denying the appeal. (I'm not particularly familiar with MN appellate practice though.)
I had guessed that the best route for Coleman to continue his delay tactics was to convince Gov. Pawlenty not to sign the certificate and force Franken to go back to the MNSCT for a writ of mandamus.
April 3, 2009 4:50 PM | Reply | Permalink
You give scalito and co too much credit. They don't follow the law or the constitution, so why would they be worried about "irreparable injury"? The analysis for scalito and co is does it help the reactionary wing of the republican party, then we have to come up wth some bs to do it. I guarantee a stay will be issued after the supremes in minnesota rule in franken's favor. Paulenty will dilly dally as long as possible before issuing the certificate waiting for the stay issuance, which will come as soon as paulenty is ordered to sign the certificate by the minnesota supremes. Look for this to drag out forever.
April 3, 2009 5:44 PM | Reply | Permalink
The election contest statute provides that the contest is subject to the rules governing civil actions 'to the extent practicable' (and not otherwise directed by the statute) and I suspect the Supremes similarly will apply appellate rules. The election contest action is strictly statutory and sui generis, but I am assuming the contest court 'order' or 'decision' will conclude 'let judgment be entered accordingly.'
In the statutes reproduced on the MNSOS website there is a case note referencing "appeal from order for judgment in election contest" but the citation is wrong, and I don't have time to track it down. Maybe next week.
April 3, 2009 6:22 PM | Reply | Permalink