Tuesday, June 30, 2009

Thoughts On Coleman vs. Franken

Today the Minnesota Supreme court issued a unanimous decison upholding the 3 judge trial court's conclusion that by 312 votes Al Franken won the most lawfully cast votes in last November's Senatorial election. The opinion is clear, the writing crisp and the analysis unarguable. Norm Coleman's lawyers lost his senate seat. MC does not exaggerate.

If anyone asks you how Norm lost, tell them to consult page 24 of the PDF version of the opinion, footnote 18. For reasons unfathomable, Norm's lawyers (Trimble and Knaak at the time) stipulated with prejudice to the inclusion in the canvassing board process (this preceeded the trial court whose decision the MN Supreme Court upheld today) some 933 absentee ballots. "With prejudice" is a legal term of art which means one cannot revisit or reargue that which has been done or agreed to with prejudice. Those absentee ballots gave Franken the lead; Norm never recovered. This was in January of 2009. His legal ability to win was on a death spiral since then.

There may have been good reasons to stipulate to those 933 ballots being included but MC can think of no reason to do so with prejudice. When Norm wanted to question the integrity of those ballots (twice!), he was told he had relinquished his right to do so. By agreement of his attorneys. By their stipulation. With prejudice.

The Minnesota Supreme Court opinion, it should be noted, mentions at every turn the failure of Norm's attorneys to prove a great many things. Coleman was outlawyered. And yes, being out lawyered does make a difference. Try a filibuster proof US Senate.


Nathan M. Hansen said...

John makes a very good legal point, I believe. When one is talking about an appeal process in this country, one is considering "the record." This includes all evidence, offered and admitted or otherwise rejected after an offer "proof." This transcript is transcribed by a court reporter and filed with the appeals court upon appeal.

Stipulations with Prejudice that limit the record are strategically a bad idea. Therefore, unless there was something that really mattered between the parties that we don't know about, it seems not correct to limit the record vis a vis any sort of agreement.

Jamie J. Delton said...

I feel vindicated with your info, John. During the panel evaluation of the ballots on that fateful Thursday, I commented to Trimble and to Sarah J that Trimble seemed to not being objecting to Franken allocations when he should have. I was told by both - you're cracked more or less. Now I feel certain Trimble could have saved at least 318 ballots from being allocated to Franken that day.