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ERIC BLACK INK

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    Coleman-Franken: Coupla clarification / reminders on where things stand

    By Eric Black | Published Mon, Apr 27 2009 5:44 pm

    Sorry I can't seem to produce installments of my endless series on what "equal protection" means as quickly as I had planned. For the Coleman-Franken obsessed, three quick notes:

    1. The next big development is due Thursday: The filing of Team Coleman's state Supreme Court brief.

    2. The Strib's poll, published Sunday (message: Minnesotans want this over), asked people whether, if the MN Supremes rule in Franken's favor, Coleman should concede, or appeal to the U.S. Supreme court (73 percent said "concede," 18 percent said appeal to Washington). The poll also asked whether, if the state Supremes rule for Coleman, Franken should concede or appeal (57 percent said concede, 29 percent said appeal).

    But there's a somewhat false implication in the question. Although I've mentioned this before, it seems to often go unclarified so here goes:

    The chances are almost nil that the Minnesota Supreme Court could issue a ruling that would or could cause Franken to concede. A win for Coleman at this stage would almost certainly consist of the case being remanded back to the three-judge Election Contest Court to redo something, probably to count some more ballots.

    The Supremes could tell TheThreeJudges exactly which ballots to count, or they could give them instructions on what they did wrong and tell them to reconsider. They could base this on an equal protection argument.

    Commenter Paul Landskroener made an interesting prediction in the thread under my first Equal Protection piece. He predicted that the court will skip the constitutional equal protection argument and just tell the lower court that it made a mistake by applying a "strict compliance" standard to the question of which ballots to count. If that occurs, I suppose the Supremes could tell TheThreeJudges which standard to apply. Or they could leave the lower court some leeway to locate the best looser standard, something in the general category of "substantial compliance." Any such remand would add time to the final outcome, and might even require the ThreeJudges to take some more testimony.

    Anyway, if they did something like that, which would be about as big a win for Coleman anyone reasonably thinks possible at this stage, it would certainly not put Franken in a position to think about conceding, at least not until after the new standard had been applied and more ballots had been counted. It's altogether possible that Coleman could win the argument at the Supreme Court, but Franken could still come out ahead after the additional ballots were counted.

    So I'd say that the Strib poll question was based on an almost non-existent hypothetical. But the main point of #2 is just to clarify the likely range of rulings favorable to Coleman that could come about on the next round.

    3. I've seen some blog talk that Coleman will have to pay Franken's legal bills if he loses, and that he is required to put up a big bond in advance to ensure this, and that it would be delicious for Dems to contemplate Coleman having to ask his funders for money that might end up going to pay for Franken's lawyers.

    This is a large overstatement.  I asked the Court Information Office about the bond and this is what I was told:

    "Minn Stat sec. 209.10, subd. 4, which governs this type of appeal, provides that “The appellant shall file in the district court a bond of $500 for the payment of respondent’s costs if appellant fails on appeal.”

    The costs that may be awarded to the prevailing party in a typical appeal include “judgment costs” of $300, any appellate filing fees, the costs of reproducing the briefs and appendix, the cost of ordering the transcript (but only if it is used just for the appeal), postage for service of briefs, premiums paid for any required appeal bonds, and the cost for any certified copies of documents need from the trial court.

    Attorney fees are not generally available as costs unless there is a statute that provides for an award of attorney fees to the prevailing party."

    What I get from that: The bond was only $500. If Coleman's appeal is rejected, he will have to pay additional costs incurred by Franken, and these costs could be a lot more than $500, but probably would not include Franken's attorney fees, which would be the biggest number.

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    Eric Black

    Eric Black Ink

    minnpost.com/ericblack


    Eric Black is a former reporter for the Star Tribune and Twin Cities blogger. He writes about politics and government of Minnesota and the United States, the historical background of topics and other issues. Click here to view Eric's previous postings at former blog, Eric Black Ink. He can be reached at eblack [at] minnpost [dot] com.

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