Who Will Be Left On Minnesota Supreme Court To Hear Appeal?
As it is, it already seems like two justices are solid bets to recuse themselves: Chief Justice Eric Magnuson and Associate Justice Barry Anderson, who served on the special state canvassing board, and previously recused themselves in state Supreme Court proceedings in this case, when the court addressed questions such as rejected absentee ballots and when a certificate of election could be granted.
But now we know that Justice Christopher Dietzen has donated money to Norm Coleman -- the checks were written over five years ago, before Dietzen first became a judge -- should he recuse himself? He's already participated in the other litigation listed above, and in all fairness he didn't seem to be biased.
And this one isn't quite so solid, but some people might wonder whether Associate Justice Alan Page should recuse himself, because he appointed the three-member trial court. (That job originally would have gone to the Chief Justice -- but he'd recused himself, leaving it to Page as the most senior associate justice.)
Regarding Dietzen, Hamline University Prof. David Schultz tells us that the case for recusal points towards yes.
Schultz agreed with me that there's no immediate evidence that Dietzen has actually behaved in any biased manner in this case. "But here's where the issue changes a little bit," Schultz explained. "If it's now starting to run on the blogs at this point, that perhaps he's got a conflict because of the contributions, the Minnesota codes of judicial conflict address not just actual conflict but the perceptions of conflict."
"That's not saying he shouldn't have recused himself before," said Schultz, "but that suggests to me he may have more of an appearance of conflict or bias than he would have before."
As for Page, Schultz doesn't think there's any real conflict here. "That's too distant," he said. "Statutorily, he had to appoint the district court, so that will have no bearing whatsoever."
Schultz further noted that the decision to recuse is made by the individual judges themselves, and they're usually very good at self-policing. As for himself, Schultz said what he would do if he were under the circumstances Dietzen is in: "If I were sitting on the bench in that matter, I would recuse myself, because at this point there is a paper-trail record of political contributions to a party in the case."
We're getting into an interesting conundrum here, which doesn't have a clear answer outside of some obvious calls: At what point is a judge ethically permitted to have his or her own private opinions, and where does the judicial system demand more?
Josh
Matt
Eric
Eric you are precious, but you are the law student, the law professors ask such questions
You slay me!
hehehehe
Minnesota Code of Judicial Conduct....might be a good place to start
http://www.mncourts.gov/?page=2061
April 13, 2009 7:00 PM | Reply | Permalink
This just shows the kid of pussy Gore was in 2000. He could have kept pushing the legal battle until at least April/May 2001. He actually won the Floridian vote even using "fuzzy math". As for the "conundrum....At what point is a judge ethically permitted to have his or her own private opinions, and where does the judicial system demand more?"
Hello! Take a look at the supreme court of the country. It's very much dominated by private opinion. Spend a day with Scalia and it won't look like a "conundrum" anymore. Do I need to say Gore vs Bush? That's 5 judges raping democracy (all appointed by republican presidents).
April 14, 2009 2:26 AM | Reply | Permalink
Not the same situation at all. Franken's is one senate seat out of 100, and it's one of two seats for Minnesota. It's not that his vote is not important, because it is, but it's not absolutely critical to the functioning of the government.
But what would the country have been like once Clinton's term had ended on Jan 20, 2001, and there was no president to take his place? Can you imagine the sort of chaotic state we would have been in? And Gore knew that, so even though he thought the case was wrongly decided, he bowed to the authority of the Court and accepted it.
Besides, once the US Supreme Court had ruled, where was he going to turn to make his case? To guns in the streets? Would you really have preferred that?
Don't blame the outcome of Bush v Gore on Gore. Blame it on the 5 people who formed the majority who made that decision, who didn't have the backbone or the integrity to stand for country over party.
April 14, 2009 4:46 PM | Reply | Permalink
Dietzen must recuse himself period.
If he donated money to see Coleman win and Franken loose then he has a bias. He may very well be a honest judge and decide the case on the facts and the law ...... but how are we gonna know that?
If he did stay and did decide for Franken that would certainly mean that facts and law won out but if he decides for Coleman we don't know anything.
I predict he recuses himself because Minnesota is one of the most no nonsense places I have ever known. I went to college there. If you want the blunt truth, ask a Minnesotan.
April 13, 2009 7:08 PM | Reply | Permalink
"If he donated money to see Coleman win and Franken loose then he has a bias."
Your conditional fails. He didn't donate to see Franken lose (or loose). He donated to Coleman five years ago, before Franken was even on the radar. That doesn't mean he is bias-free, but it brings his potential bias closer to any other judge who donated to any candidate from either party. Since the MN judiciary is tri-partisan and has been behaving so well in this case, I don't see a lot of real reason for him to step down. I can see how he might do so because of perception. But personally I'd rather he stayed for the unanimous decision against Coleman. It won't stop the wingnut squawking about "stolen" elections but it'll make it even more absurd.
April 14, 2009 12:19 AM | Reply | Permalink
The case for Page recusal is weak!
April 13, 2009 7:16 PM | Reply | Permalink
Justice Christopher Dietzen's donations to Senator Coleman are a prima facie indication of a conflict of interest. On the other hand, if the donations really were five years ago, and Justice Dietzen wasn't even a judge at the time, and he's stopped donating since he became a judge, _and_ his decisions have been unbiased up until now, then whether to recuse himself seems well within the realm of Justice Dietzen's discretion.
Now, if Justice Dietzen had worked for or been paid by Coleman in the past, or had some closer business or political relationship, or had donated to Coleman during this election cycle, I would have to modify my opinion.
The case for Justice Page's recusal is very, very weak.
April 13, 2009 7:35 PM | Reply | Permalink
from the cite above:
Canon 3.D. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
BUT
Canon 3.E. Remittal of Disqualification.
A judge disqualified by the terms of Section 3D may disclose on the record the basis of the judge's disqualification, and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be incorporated in the record of the proceeding.
April 13, 2009 7:37 PM | Reply | Permalink
I hope all of the judges present the issues and ask the parties whether they should recuse. Because if the final ruling is by substantially less than a majority of the court, that will give Pawlenty a perfect excuse to not certify the election and the right-wing cabal on the court in DC to grant cert. "You see, the court would have voted for Norm, but they couldn't issue a valid ruling because of the republican sense of fair play, so blah blah blah we have to find a court that won't be limited by that problem."
(My background knowledge on this is with boards of regulatory agencies, where people who lose cases while too many seats are vacant can tie the decision up in court pretty much indefinitely. Obviously the actual law is different, but the echo chamber will act as if it isn't.)
April 13, 2009 8:08 PM | Reply | Permalink
BREAKING NEWS in e-mail from UpTake:
On-line discussion at http://is.gd/sfuX
April 13, 2009 7:38 PM | Reply | Permalink
Oops. I meant to say that a PDF of the District Court's ruling is here: http://is.gd/sfuX
April 13, 2009 7:42 PM | Reply | Permalink
Also, pg21 breaks it down: 1,212,317 votes for Coleman; 1, 212,629 votes for Franken.
And the words many want to hear is there too: "Franken is entitled to receive the certificate of election"
Of course, now the appeals begin. And now this thread (supreme court judge recursals) is now extremely timely.
April 13, 2009 8:04 PM | Reply | Permalink
The good stuff:
#3 is kind of interesting too, meaning Coleman's gotta pay for the proceedings.
April 13, 2009 7:55 PM | Reply | Permalink
#3 might well take the wind outta Slimy Norman's sails. Do his donors still feel like pouring their money down a rathole?
April 13, 2009 8:11 PM | Reply | Permalink
Ha! Check out this audio message from Al Franken to all of NoCol's GOOPer contributors!
April 13, 2009 9:09 PM | Reply | Permalink
Ugh. I hadn't realized that imeem.com required you to log in to listen to the file. Here's another link to that file, this one on 4shared.com which doesn't require a login.
April 13, 2009 9:21 PM | Reply | Permalink
I rather doubt his donors will be giving out their credit card information to him again but there is always the Republican party. So far they haven't shown any stinginess in paying his legal expenses.
April 13, 2009 9:23 PM | Reply | Permalink
#3 is really interesting as, presumably, the Court will be submitting an affidavit to itself for the "Costs" of the contest.
As has been discussed before, I don't see, though, that Franken will be able to claim attorneys' fees as costs in light of #4 (he should get between $5K and $10K in sanctions on that point).
April 13, 2009 8:16 PM | Reply | Permalink
also real interesting how the 'p' in proceedings vanished (converted photo pdf into text, then copied/pasted the decision). Doh.
April 13, 2009 8:49 PM | Reply | Permalink
I read "cost of the contest must be paid by the Contestants and the Contestee..." Isn't that both sides?
April 14, 2009 6:13 AM | Reply | Permalink
3-0 ruling.
"That's Good News For Norm Coleman."
John
April 13, 2009 7:49 PM | Reply | Permalink
THIS...
April 13, 2009 8:12 PM | Reply | Permalink
IS
April 13, 2009 8:19 PM | Reply | Permalink
EXCELLENT
April 13, 2009 8:39 PM | Reply | Permalink
NEWS!
April 13, 2009 8:59 PM | Reply | Permalink
4!
April 13, 2009 9:11 PM | Reply | Permalink
FRANKEN!
April 13, 2009 9:24 PM | Reply | Permalink
As to Page, Schulz is wrong. He gives nice "conflict" copy, and he has a hyper active ethics gene. But he's wrong.
April 13, 2009 7:55 PM | Reply | Permalink
No, no, no, no! The election isn't over until the (losing) republican wins!
And if he really CAN'T win, because they can't cheat adequately, they can at least keep the winner from taking office long enough to frustrate that black guy in the White House from getting his judicial appointees in office. Oh! Never mind! They already said they would filibuster his judicial appointments if he releases the
TORTURE MEMOS!
THESE REPUBLICANS NEED TO BE HUNG OUT TO DRY!
NO Democrat would have tried to pull the BS they are pulling because we have a sense of honor! Republicans should crawl under a very heavy rock unless they can find it within themselves to be honest. -- silly me. Not gonna happen.
April 13, 2009 8:35 PM | Reply | Permalink
I'd be careful about going out on a limb with a blanket "Democrats have a sense of honor." Don't get me wrong, I'd like to drop-kick the GOP into the Grand Canyon because of the slimy way they are practicing politics these days, but I am not going to pretend that Democrats are all choir boys.
April 14, 2009 4:57 PM | Reply | Permalink
So do we have to wait ten days until the appeal starts or does the Franken camp have any way on tap of speeding that up?
April 13, 2009 8:48 PM | Reply | Permalink
They'll wait, most likely. At least if this is whole thing has been a sham to keep Franken out of office as long as possible.
April 13, 2009 8:52 PM | Reply | Permalink
At this point, I doubt that Coleman will wait. He probably will file the notice right before close of business on Friday or next Monday at the latest. That way they Coleman can claim that he "seriously considered the order, but filed early to avoid the appearance of any unnecessary delay in this important matter", or something to that effect.
April 13, 2009 8:59 PM | Reply | Permalink
He'll do what the party tells him to do if they're paying his bills.
April 13, 2009 9:41 PM | Reply | Permalink
I'm not from Minnesota, but are Minnesotans happy with this prolonged process. I was just wondering, since I haven't really heard any frustrated outcries.
April 13, 2009 9:07 PM | Reply | Permalink
I am from southeastern MN. There have been very few letters to the editor or other outcry from this area. I think this is because most Minnesotans know that the election law was being followed, the process was incredibly open and transparent, and thus we could and should just be patient (difficult as that was) until the process worked its way through. Now that the three judge panel has made it's ruling, I expect the patience to be done with, and calls for Norm to step aside and quit being a "sore loser" will ramp up. (It's already being seen in comments to articles in the Star Tribune and St. Paul Pioneer Press, our two largest newspapers). The longer Norm drags this out, the angrier all Minnnesotans will become. He had his day in court, he lost, it was fair--done deal.
April 14, 2009 12:31 PM | Reply | Permalink
There is zero conflict concerning Page.
April 13, 2009 9:42 PM | Reply | Permalink
Just speaking for myself of course, but I'
d rather have this process go through the Minnesota Supremes, at which point most persons without insurmountable biases would have to agree that all reasonable efforts have been made to ensure a fair and accurate outcome. The tedious nature of this will have been worth it if the people of Minnesota can have faith in good governance and fair elections. As for the folks who can't or won't accept the results, Senator Franken will be up for reelection in a bit less than 6 years, you'll have to wait til then!
April 13, 2009 9:59 PM | Reply | Permalink
Do they have to hear it at all? Why can't they just decline?
April 13, 2009 11:21 PM | Reply | Permalink
Well, I'm no lawyer, but I should think that declining to hear the case could indeed be an option. That's probably one reason the court that heard the case tried to be so careful about giving grounds for appeal.
April 14, 2009 5:01 PM | Reply | Permalink
Or perhaps I should have phrased that: "...tried to be so careful not to give grounds for appeal."
April 14, 2009 5:03 PM | Reply | Permalink