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Coleman-Franken appeal: Make your best guess, as Minnesota Supreme Court expert predicts Decision Day

Las Vegas bookmakers haven’t posted it yet, but Peter Knapp has set the “over-under” line for when the Minnesota Supreme Court will issue its decision on the Norm Coleman-Al Franken case.

It is June 18. By 6 p.m.

Take it to the bank. (Maybe.)

With Coleman’s lawyers set to file their appeal brief today with the state Supreme Court, Knapp weighed in. He is the William Mitchell College of Law professor who is the world’s most diligent observer of the state Supreme Court and its inner workings.

Knapp charts decisions. He notes decision turnarounds. He analyzes dissents. The guy might even know how often they send their robes to the dry cleaner.

“In typical civil and criminal cases, the court usually issues its opinions within three to five months,” he said, “but there are cases in which the opinions come down eight or nine months after argument.  Dissents usually occasion delay.”

Would the Coleman appeal produce a unanimous decision from the five judges sitting on it?

What’s your guess? Mine is unlikely.

The “over-under” is the number below or above a predicted score or benchmark. Thus, if gambling were legal in Minnesota, the under bettor would take June 17 and the over bettor June 19.

Why June 18?
A few things: recent election-linked cases have moved relatively swiftly through the state’s highest court; June 18 is a Thursday, and the Supreme Court’s decisions are, generally, announced on Thursdays.

Peter Knapp
Peter Knapp

Another thing: Knapp is guessing, in an educated way, of course.

“Election cases are an exception,” he said. “The court usually issues its opinion within weeks of the oral argument.”

In one election case that had to do with the wording of an initiative on a ballot, the Supreme Court actually issued an order in one day.

It said, more or less, “We know which way we’re headed, let’s not wait any longer,” Knapp said. Then, a few weeks later a full opinion came down the pike.

Knapp said the Supremes are unlikely to act that swiftly on Coleman’s appeal because, really, there’s no election on the horizon.

“There isn’t any hard and fast deadline,” Knapp said.

Still, the Supreme Court’s actions in the recount cases have been, relatively speaking, swift.

Take Franken’s action earlier this year when he asked for his election certificate even before the end of the election contest trial.

Franken’s lawyers filed their motion on Jan. 13. The court acted quickly and set a hearing for Feb. 5. A ruling came down a month later. That is breakneck speed … in Supreme Court time.

Earlier still, during the recount, on the matter of how to count rejected absentee ballots, Coleman’s side sought a temporary injunction from the Supreme Court. Coleman filed papers on Dec. 15, the court rapidly heard arguments on Dec. 17 and had an order by Dec. 18.

Wham. Bam.

Don’t expect that here, Knapp said. Not at all.

Remember, this isn’t the only case on the Supreme Court’s calendar.  For May, the justices already have 13 cases listed for oral argument.

And, as Knapp noted, unlike many recount geeks out there, they haven’t been glued to their computer screens watching the video stream of the election contest trial.

I’m told the transcript of the trial is sure to exceed 6,000 pages. In theory, the justices – or their clerks – will read all of those pages to guide them through the facts of the case.

And then there is the gravity of this case, or any state Supreme Court case. Judges aren’t writing for today, Knapp said. “They’re writing a decision for every single lawyer and every single judge. They think of themselves as writing for the future. That means every single word has got to be edited, revised and conform to what their decision states the law to be.”

That explains why, in most cases, without such a spotlight, it takes the three to five months.

Knapp isn’t privy to the entire process of how the justices write-by-committee, but in his research and in his reading of how the U.S. Supreme Court operates, he can conjecture.

He suspects the writing process on this Coleman appeal won’t begin until after the oral arguments in this case, which won’t be heard until June 1.

Then, the judges will conference and check out where each of them stands. (Remember, Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson have recused themselves because of their earlier State Canvassing Board service.)

Presumably, Associate Justice Alan Page, the most senior of the five, will assign someone in the majority to write an opinion. That opinion, which will take a while to write, will get circulated among the five.

Others will fiddle, tweak and add. And if there’s a dissent, that document will begin to circulate. The majority will respond to that written dissent. The dissent will further mold the majority’s view.

Knapp was stunned when he heard partisans and others complaining that the Supreme Court set June 1 for the hearing date … a full six weeks after Coleman filed his motion for appeal.

“People said, ‘It doesn’t look like they’re handling this quickly,’ ” Knapp said. “I said, ‘Yeah, they are!’ “

Those wheels of justice and, what Norm Coleman calls the task of “getting it right,” take a while to turn.

Knapp does allow that Arlen Specter’s recent decision to jump political parties could affect his over-under analysis, what with Franken potentially becoming the 60th Democratic senator.

The pressure building on the judges – already sizable – has grown because of the stakes.

“If I were betting, I might take the over,” Knapp said of his own over-under.

Still, circle Thursday, June 18. Or call your legal bookie. The good professor knows his stuff.

OK, MinnPosters, how would you bet. And why? Comment below.

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Comments (6)

  1. Submitted by Alan Paulson on 04/30/2009 - 11:02 am.

    Hello Eric, You should have asked the good Professor if he thought the MN SC opinion would be unanimous 😉 I’ll take the “yes” on that one, and I’ll take the “over” on the date (but not by much).

  2. Submitted by Howard Miller on 04/30/2009 - 11:15 am.

    Companion betting question … how long from the Minnesota Supreme Court ruling to our second senator casting his first vote in this Senate?
    Could it be as late as after Labor Day?
    Will the Senate be in session during the summer months?

  3. Submitted by Jeremy Powers on 04/30/2009 - 12:46 pm.

    I’ll take the under and a unanimous court against Coleman’s arguments. First, the equal protection clause is the 5-gallon bucket of lost legal causes. When you have nothing else to go on, that’s what they drag out. It was intended to protect the weak and the vulnerable from the powerful. That is not the case and it is, to say the least, a stretch in Coleman’s case. Second, the Supreme Court doesn’t deal with minutiae and that’s what Coleman’s case is based on – millions of votes cast but we want these votes counted in a Hail Mary effort. Third, a decision for Coleman would be to override the near-unanimous efforts of election professionals who have already been twice reviewed. When a Supreme Court deals with other professionals (typically lawyers and police), they almost never deal with unanimous efforts. Finally, if they accept Coleman’s argument, expect every, single close election to go to the courts. The Supreme Court is not supposed to take into consideration how setting precedent might affect their decisions, but the truth of the matter is it does.

    Finally, I’ll even predict one more than that. I predict the Minnesota Supreme Court will order Gov. Pawlenty and Secretary of State Ritchie to issue an election certificate.

  4. Submitted by Alan Paulson on 04/30/2009 - 01:09 pm.

    Hello Jay, My apologies BTW for being unable to tell the difference between between “Jay Weiner” and “Eric Black” so early in the morning. I will try not to let it happen again 🙂

  5. Submitted by Steven Smith on 04/30/2009 - 01:36 pm.

    I will take the under, too. The district decision is exceptionally well constructed, raised the bar of legal argument above that presented by the Coleman and Franken briefs, and the Supremes will find it hard to get to other work until this case is addressed. Five decide more quickly than seven.

  6. Submitted by Danny McConnell on 04/30/2009 - 03:39 pm.

    Jay,
    I’d comment on how I would bet, but I don’t want the Minnesota Department of Public Safety to break my door down and arrest me. Talking about betting on this post could be construed as “internet gambling”

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