Governor’s recount: With today’s certificate signing, it’s a wrap, but indelible images linger

Secretary of State Mark Ritchie makes it official this morning.
MinnPost photo by Terry Gydesen
Secretary of State Mark Ritchie makes it official this morning.

When Secretary of State Mark Ritchie signed the certificate at 10 a.m. today formalizing Mark Dayton’s victory, the gubernatorial election of 2010 officially ended, but not without a handful of indelible images and lingering verbal exchanges.

How can we ever forget Republican Party Chairman Tony Sutton kicking off the post-election brouhaha with his flamboyant and combative words: “We’re not going to get rolled this time.”

He meant the GOP wouldn’t get pushed around, in his view, in another statewide recount as he felt they were in the 2008 U.S. Senate fight.

Even though Republican candidate Tom Emmer’s recount defeat was somewhat inevitable, given Dayton’s insurmountable lead, Sutton’s theatrics were about setting a tone — if not a coherent strategy — and he told MinnPost Wednesday he regrets nothing he said or did.

“I don’t think we did get rolled,” Sutton said. “We were very aggressive and we were very strong in representing our interests … I have more confidence in this election than I do in oh-eight’s.”

Justice Paul Anderson
MinnPost/Jay Weiner
Justice Paul Anderson

Secondly, how can anyone who saw it shake the memory of Supreme Court Justice Paul Anderson scolding and threatening Eric Magnuson, his former colleague/boss, who represented Emmer before the State Canvassing Board?

In retrospect, these worth-the-price-of-admission Anderson monologues were, it seems, about a bunch of things, not the least of which is the high standard that former judges especially are expected to meet.

Anderson, also concerned that he and the election process were being toyed with, took matters into his own hands.

Here’s a look back at some of those high-profile moments:

Tony Sutton’s job
“I am the state chair of the Republican Party,” Sutton was saying on the phone the other day. “I am the most hyper-partisan person in the state because that’s my job … My job is to hold the other side accountable … How do we do that? Through the court of public opinion.”

So he popped off early on and often. Sutton is good at that.

But behind the words, the Emmer forces seemed to be somewhat bipolar: with zealous GOP lawyer Tony Trimble and Sutton, playing bad cops, aggressively challenging the election system and ballots, and with Magnuson (in most instances) and Emmer’s other lawyer, Michael Toner, playing good cops.

Tony Sutton
MinnPost photo by Jay Weiner
Tony Sutton

Toner is also the lawyer who helped Gov. Tim Pawlenty set up his presidential political action committee.

Early suggestions that a protracted recount could keep Pawlenty in office beyond Jan. 3, swirled amid such a convenient Pawlenty-Emmer connection. But that possibility soon became politically dangerous with Dayton’s lead and the barrage of frivolous ballot challenges. And Sutton scoffed at a DFL notion that there was “some sort of Sutton-Pawlenty conspiracy.”

Sutton denied the Emmer effort was disorganized and said direction came from Rep. Emmer himself.

“Let me be perfectly clear: Nothing we did was not coordinated,” Sutton said. “Everything we did was completely coordinated. We had serious concerns about Hennepin County and [Elections Manager] Rachel Smith … So, we took a more aggressive approach there … It wasn’t bipolar. There was a method to it.”

It sure didn’t seem that way.

In Ramsey County, Toner was peacefully, sometimes playfully, resolving matters with Ramsey County Elections Manager Joe Mansky.

Ten miles away in Hennepin County, Trimble was overseeing thousands of ludicrous frivolous challenges and talking trash. Meanwhile, Sutton was claiming Smith was intimidating GOP recount workers, but no one else saw that.

One day, Trimble said the Emmer campaign would challenge enough ballots to negate Dayton’s 9,000-vote lead. The next day, Emmer himself said he was going to instruct his lawyers to withdraw weak challenges. Hours later, Magnuson wrote a firm letter to the Canvassing Board, “We categorically reject the assertion … that the Emmer campaign has been ‘disrespectful’ of the process.” Twenty-four hours later, thousands of frivolous challenges were withdrawn.

Tony Trimble
Pool photo by Jeff Wheeler
Tony Trimble

If there were a central command-and-control in the Emmer camp, it was hidden in plain view. That unpredictability obviously irked Justice Anderson, who declined comment for this story.

He clearly didn’t trust Trimble — without naming him but looking at him, he spoke of certain “transgressions” by the Emmer team. But, clearly, Anderson was holding Magnuson accountable for the entire Emmer operation.

For Anderson, the image and good name of that club known as the Minnesota Supreme Court seemed to be at stake.

Supreme scrutiny
Magnuson left the Supreme Court on June 30 and is now in private practice. He departed the court and its $167,000 salary to join Briggs and Morgan where, those in the legal community say, he can make substantially more. He’s entitled to such legal spoils.

But, when Magnuson’s hiring by Emmer was announced, eyebrows in the legal community were raised. Not only because he was so fresh off the bench and not because it was any surprise he was a Republican — after all, he was appointed by Gov. Tim Pawlenty. It was more because he had not shown any GOP stripes during his fair-minded service on the 2008 Coleman-Franken canvassing board, or when he wrote the decision that overturned Pawlenty’s unallotment gambit or when he campaigned for more funding for the state’s courts.

While some thought his diving into the 2010 recount was somehow too soon, Cynthia Gray, the director of the Center for Judicial Ethics at the American Judicature Society at Drake University in Des Moines, said that she’s not aware of “any restrictions on former judges other than that they cannot use their former title in practice and there would be cases they could not handle as an attorney because of their involvement in them as judges.”

Indeed, when Emmer and the GOP took the matter of “reconciliation” quickly to the Supreme Court last month, Magnuson didn’t sign any of the related documents and didn’t appear in court that day.

This morning, Magnuson told MinnPost there is “an informal two-year rule” that former justices should stay away from the court. And he mindfully kept to it.

Eric Magnuson
MinnPost/Bill Kelley
Eric Magnuson

(Note: Another former Supreme Court justice, Sam Hanson, a Briggs and Morgan colleague, did sign some the documents. He left the court in January of 2008.)

But Magnuson was Emmer’s lead lawyer before the State Canvassing Board, the same body he sat on just two years earlier and during which he and others expressed dismay with too many challenged ballots. Minnesota statutes have limits on commissioners appearing in matters before their former agency. There’s a one-year blackout period. (See Subdivision 9)

Magnuson is two years away from his canvassing board service.

Still, there was discomfort among some legal observers about Magnuson’s role.

Former Supreme Court Justice Lawrence Yetka, who was on the high court for 20 years but left in 1993, said in an interview:

“I hate to be critical of Eric because I know he’s a high-class individual and I have the highest respect for him, but frankly I was surprised when he appeared so soon after leaving his post and to be involved in the same type of case. I don’t like the idea. That’s about all I can say … I just don’t like the idea of any judge appearing before his court or colleagues a short time after leaving. That’s very dangerous. I think it looks bad, and it’s bad for the profession when it happens … It makes an atmosphere where members of the public believe they’re running up against a stacked deck.”

And retired Supreme Court Justice Esther Tomljanovich wondered if the GOP helped itself by hiring Magnuson.

“I hate to be critical of Eric because it was a client of his, but I didn’t think that the Republican Party did themselves a favor,” she said. “I think it’s a mistake for a client to do it. I think they expect they will get favorable treatment …”

To appear before a former colleague such as Anderson “puts the justices in an awkward position,” said Tomljanovich, who retired from the bench in 1998. She signed on to a brief before the Supremes five years later, her only contact with the Supreme Court after retirement.

Tomljanovich was on the Supreme Court when Republican Arne Carlson was placed on the gubernatorial ballot in the 1990 campaign’s final days. She was appointed by DFL Gov. Rudy Perpich. She ruled in Carlson’s favor. (Irony: Carlson was represented by then private attorney Paul Anderson.) Carlson went on to defeat Perpich.

“Rudy always thought that’s what beat him,” Tomljavonich said of her decision to place Carlson on the ballot. “So, I know how awkward and painful those things are … You do not pay your political debts with judicial rulings, and I think that’s what the client always thinks.”

For his part, 

Magnuson told MinnPost that he and others at his law firm carefully thought about any ethical issues that could arise. But he agreed with Tomljanovich that a client must factor in any backlash against a former Supreme Court justice as his lawyer.

Said Magnuson: “In the end, you decide whether the advocate has the skills and experience to forcefully make your case. That’s why I was careful not to go before the Supreme Court because there would be too much of an overlay … If anyone thinks you get hired and succeed because of your reputation, they’re just wrong … You’ve to got be knowledgeable and you’ve got to be skilled. I’m completely happy with the job I did. I think it was effective. If it came along, I’d probably do it again.”

As for any conflicting signals from the Emmer camp — with Toner and Magnuson seeming, in Magnuson’s words (said with a chuckle), “ reasonable and rational,” and Sutton and Trimble more aggressive, Magnuson said: “There were lots of people saying lots of things that I wasn’t involved in or responsible for.”

He said his main goal was to make sure the recount’s procedures were fully followed.

“The biggest frustration I had was people wanted to short-cut the process because they didn’t think it would change the result,” he said. “That’s not the main purpose of the recount, to change the result … You test everything … When we got the right result, when we got far down the path, it was Rep. Emmer’s choice to quit.”

With the passage of time, the whirlwind events between noon on Thursday, Dec. 2, and 2 p.m. Saturday, Dec. 4, will have to be remembered as the 50 hours when Emmer’s efforts keeled over.

Noon Thursday, as frivolous challenges mount, Emmer lawyer Trimble threatens to pick up the pace.

Of the avalanche of challenges, Trimble says defiantly, “Remember, this is not a clinical process, folks. This is a political process … So, there’s going to be some of that gamesmanship around.”

His comments are streamed live on the web-based channel, The UpTake, for many to witness, but not Sutton. “I don’t watch DFL blogs,” he said of The UpTake.

Still, within a half-hour, witnesses see Trimble take a phone call and quickly leave the Hennepin County Government Center. The challenges inexplicably begin to slow down.

Friday morning, 10:30, Emmer announces he’s not planning an election contest effort and he’s instructing his lawyers to withdraw bad challenges.

Within two hours, Magnuson sends a letter to the Canvassing Board saying challenges without merit will be withdrawn but continuing to assert the frivolous challenges in Hennepin County are the result of aggressive table workers making the proceedings “fractious and contentious.” The Emmer lawyers seem to still be fighting.

By 3:30 p.m., Justice Anderson, who said he read of Trimble’s comments Thursday and who had previously warned Magnuson about carrying the water for frivolous challenges, sought to clarify what seemed like a pingponging Emmer approach.

It was more than remarkable to see Anderson aggressively cross-examining Magnuson, a man who Anderson believed would have become one of the state’s great chief justices had he stayed on the bench. It is, in the rewatching (at about the 1-hour-42-minute mark) somewhat painful.

While Anderson pressed Magnuson on his understanding of key rules of Minnesota Rules of Professional Conduct for lawyers, he was talking to Trimble, too.

Anderson cited three rules (PDF), all having to do with good faith and honesty on the part of lawyers. And he wondered if he should post the rules on the hearing room’s overhead screens for Magnuson to examine and vow allegiance to.

“I would not expect that you would have to do that, your Honor,” Magnuson said, with fatigue and frustration in his voice.

“You understand the consequences of those rules … do you not?” Anderson asked Trimble and Magnuson.

Magnuson: “Your Honor … It is our job to advocate our client’s position.”

Anderson: “Within the rules.”

Magnuson: “Within the rules … I’m … well aware of my ethical obligations.”

Later, Magnuson would tell reporters sharply of Anderson’s admonitions: “I didn’t need to be reminded of my ethical obligations.”

Today Magnuson said: “I have a real issue with what Paul did, but that’s about as far as I’m going to say.”

GOP chairman Sutton said Anderson’s tongue lashing didn’t change things.

“We made some internal decisions, based on direction from Tom Emmer,” he said. “He was in control of this the whole way. The Democrats act as if it was some sort of Sutton-Pawlenty conspiracy. It wasn’t that way at all. Tom made the decisions, not the lawyers.”

By Saturday
, Magnuson and Trimble were sitting in an anteroom in the Hennepin County Government Center, looking at ballots Emmer operatives had challenged under Trimble’s supervision.

They started with 2,604 challenges. They retained a grand total of 24 of them. It was as if they were eating 2,580 pieces of crow, served up by Paul Anderson.

The frivolity was over. Three days later, a final Supreme Court opinion attached to an earlier ruling further slammed the door. Emmer conceded within 24 hours.

Soon after, Anderson publicly apologized to Magnuson, saying, “I have the highest respect for your professional standards.” Magnuson’s expression during the apology wasn’t exactly conciliatory.

Sutton said he was just doing his job. Anderson felt he was, too.

As for the next meeting between Justice Anderson and the former Justice Magnuson? The jury is out on how that will go.

Jay Weiner writes about politics and sports business issues. He is the author of “This Is Not Florida: How Al Franken Won The Minnesota Senate Recount.” He can be reached at jweiner [at] minnpost [dot] com.

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Comments (4)

  1. Submitted by Christopher Moseng on 12/16/2010 - 02:14 pm.

    Thank you for capturing the chronology and letting it speak for itself. There was something untoward happening in Hennepin County during the recount all right, but it was all of the GOP’s manufacture. It seems the GOP really lost its credibility with the press, if not the public, when they went after Rachel Smith for trying to obstruct their obstructionism.

    The difference between how recounting in Ramsey and Hennepin is entirely attributable to the conduct of the GOP challengers in those locations, going right up the chain to the attorney overseeing the challengers. Toner agreed to review challenges and withdraw every day, and Trimble repeatedly refused. Maybe they hoped challenges would have the same effect on the press in 2008? They lost that battle with the State Canvassing Board when they decided to keep frivolously challenged ballots in the count. Maybe they thought they could compel the Canvassing Board to review every challenge whether frivolous or not? They lost that battle when J. Anderson delivered his message to Trimble through CJ Magnuson.

    It’s not clear why they were pursuing this strategy–and it doesn’t really matter whether Emmer dictated it or not–the point is they were acting like the political campaign was still underway and abusing the system (and its volunteers and professionals who have no interest but to see that it is carried out with integrity and efficiency) for political ends. I don’t suppose CJ Manguson deserved to get publicly spanked for the GOP’s bad behavior… but if you lay down with dogs…

  2. Submitted by Beryl John-Knudson on 12/16/2010 - 04:01 pm.

    Ode To Humpty The Dumpty

    Oh such infamous last phrasing,
    and so hysterically amazing,
    Humpty Dumpty Tony defraging…

    “We’re not going to get rolled again !”


    All the king’s horses and all the
    king’s media asses
    cannot put Tony’s
    Mother Goosing together…

  3. Submitted by Allison Sandve on 12/16/2010 - 09:01 pm., Dec. 16:

    “I am the state chair of the Republican Party,” Sutton was saying on the phone the other day. “I am the most hyper-partisan person in the state because that’s my job … My job is to hold the other side accountable … How do we do that? Through the court of public opinion.”

    MPR, Nov. 11, on the recount:

    “We’re not trying to win the battle in the court of public opinion,” Sutton said.

    Maybe the guy who compared loyal public servants to Nazi collaborators should stay away from discussing the court of public opinion.

  4. Submitted by Tom Reinan on 12/17/2010 - 08:45 am.

    I disagree with Sutton’s assessment: it appears that Tony Trimble got rolled.

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