Court Filling Dump III

I've excerpted what I believe to be representative portions of each court document released on Friday. I'll eventually return to this post and provide context for each filing.


Contestants do not support a remedy that would disenfranchise Minnesota voters whose ballots already have been counted. We would prefer to respond to Petitioners' renewed motion for summary judgment as we did the first such motion: let these ballots be counted so long as all similarly situated ballots are counted as well. The Court's rulings, however, dictate otherwise. Moreover, subsequent events have shown that Petitioners' declarations and affidavits are not always trustworthy; nor are the registration records used to support them. As a result, Contestants must oppose Petitioners' motion.

Petitioners' motion should be denied on two grounds. First, as to several of the ballots, the proffered evidence either demonstrates that they cannot meet the Court's standard for a legally cast vote or the proffered evidence is incomplete. These voters have not met their burden ofproof. Second, as to the remainder of the ballots, the cloud cast by the subsequent revelation that Ms. Gorski's affidavit (which appears to have been obtained by the same persons who obtained these Petitioners' affidavits and declarations) was false, together with Contestee's stance on the necessity of having voters testify so as to be subject to cross-examination, augers in favor of leaving their claims to be resolved at trial.


Summary judgment is a blunt instrument. It should be used only when the moving party has satisfied the Court that there is no genuine issue of material fact and judgment should be granted in his or her favor. Minn. R. Civ. P. 56.03; Anderson v. State Dep't ofNatural Res., 693 N.W.2d 181,186 (Minn. 2005). All facts must be viewed in the light most favorable to the non-moving party. State Farm Fire & Casualty v. Aquila Inc., 718 N.W.2d 879, 883 (Minn. 2006). Here, that means the Court must cast a wary eye on self-serving declarations and must scrutinize the documentary evidence; if it is not clear that the statutory standard has been met, summary judgment should be denied.



For all of the foregoing reasons, Contestants respectfully request this Court deny Petitioners' motion.

Dated: February 26, 2009

Source: Contestants Opposition to Renewed Motion for Summary Judgment via [PDF]

On January 22, 2009, Norm Coleman, Intervenor-Respondent in the above-captioned Petition filed with the Minnesota Supreme Court, filed a response to Petitioners' motion for summary judgment stating that he agreed that Petitioners' absentee ballots should be counted. Contestants' Memorandum of Law in Response to Petitioners' Motion for Summary Judgment, January 22, 2009, at 1. Now, in an extraordinary reversal, Coleman asks this Court to vacate its February 10, 2009, Order granting summary judgment in favor of 24 petitioners. Coleman's motion is based upon a selective review of the evidence, a desperate attempt to find inconsistencies where none exist, and unfounded speculation.


A. Coleman is not Entitled to Relief from the February 10 Order as it Relates to the Eight Ballots Identified in Contestants' Memorandum of Law

Coleman asserts that he is entitled to relief from this Court's February 10 Order because eight ballots which were ordered to be opened and counted allegedly "cannot be squared with the Court's subsequent ruling on February 13,2009...." Contestants' Memorandum at 3. In order to obtain relief from a judgment, a party must demonstrate: (l) a reasonable case on the merits; (2) reasonable excuse for failure to act; (3) the moving party acted with due diligence after notice of entry ofjudgment; and (4) no substantial prejudice will result to the opposing party if the motion is granted. Reid v. Strodtman, 631 N.W.2d 414, 419 (citing Finden v. Klass, 128 N.W.2d 748, 750 (Minn. 1964)).


B. There is no Basis for Vacating the Entire February 10 Order.

Notwithstanding his initial support of Petitioners' motion for summary judgment, Coleman asserts that he is entitled to relief from this Court's February 10 Order because he has changed his mind and now believes that "the ability to cross examine the affiants or absentee voters has become critical." This is not a sufficient basis for vacating ajudgment.



Coleman has failed to establish that he is entitled to relief from the Court's February 10 Order granting summary judgment in favor of 24 petitioners. Accordingly, Petitioners request this Court deny Coleman's Rule 60.02 Motion to Vacate.

Dated: February 26, 2009

Source: Petitioners Memorandum of Law Opposing Contestants Rule 60.02 Motion to Vacate Judgment via [PDF]


The Court has now heard oral argument from both parties on the pending motion in limine to exclude evidence relating to certain emailed "certifications" sought by Contestants. During the course of that argument, Contestants presented no new arguments or theories ofa dmissibility that would save the "certifications" at issue. Contestee respectfully submits that, on the record before the Court, the Court should grant the motion for the reasons set forth in the opening brief and at oral argument. As invited by the Court, Contestee Al Franken with this memorandum responds to the authorities relied on by Contestant during oral argument.


At oral argument, Contestants expressly abandoned any reliance on Rule 803(6), the business records exception. They "primarily" rely upon Rule 803(8), and counsel also mentioned, as suggested by the Court, Rule 803(10).1 Neither of these rules provide a vehicle for the admission of the "certifications" in question, even assuming that Rule 902's self-authentication provisions applied.



For these reasons, Contestee respectfully submits its that the requested "certifications" be excluded in favor of actual testimony of persons with knowledge, copies of the original source materials, and other relevant evidence, all subject to cross examination on the public record before this Court, on the record, and before the public.

Dated: February 25, 2009

Source: Contestees Reply in Support of his Motion in Limine to Exclude County Data Practices Act Certifications via [PDF]


Over the course ofthe last five weeks, this Court has heard testimony from a variety of state, county and municipal election officials from across the state, from the smallest of counties to the most senior election officials, pored over thousands of documents, and heard from citizens who have appeared pursuant to subpoenas, all in an effort to fulfill its statutory responsibilities to declare which candidate for the United States Senate received the "highest number of votes" in the November 4,2008, general election. Appearing before this Court has been., it is fair to say, an inconvenient, but critically important, duty ofthe election officials charged with the responsibility for conducting this election (just as conducting the recount itself was an inconvenient but critically important duty). Those officials, however, have appeared without complaint, often in inclement weather, from far flung locations, and awaited the call to provide testimony and evidence before this Court.

In anticipation of the commencement of Contestee's case early next week, Contestee issued several subpoenas seeking testimony from election officials from several large counties, including Hennepin County, Ramsey County, and St. Louis County, and from the City of Duluth. In each instance, Contestee tendered to the witness the appropriate witness fee and mileage allowance required by statute.

Jeffrey Cox, the City Clerk for the City of Duluth, objected to the subpoena seeking, in addition to the statutory witness fee and mileage, advance payment of an hourly charge of $60 per hour for his time, to be charged on a 24-hour a day basis, with a minimum $1,000 advance payment. When Contestee refused to make these additional payments, Cox filed the motion at bar seeking to quash the subpoena unless and until Contestee make advance payments in excess of $1,100. The motion is without foundation and Contestee respectfully requests that the Court deny the motion. Minnesota law does not require payment of additional sums, over and above the statutory fees, to a public election official who is required to provide testimony in a statutory election contest, much less hourly fees charged on a 24-hour basis. Appearing before this Court imposes no greater burden on Mr. Cox than the burden imposed on auditors from Crow Wing, Lyon, Becker, or Beltrami counties, all of whom appeared in this Court without complaint, as did the highest ranking election officials in the state.

The motion, Contestee respectfully submits, should be denied.


After learning on Monday, February 23,2009, that Contestants were planning to rest their case as early as Wednesday, Contestee's counsel prepared trial subpoenas for election officials for the City of Duluth, St. Louis County, Hennepin County, and Ramsey County to ensure that witnesses would be available if Contestee's case began Thursday, February 26, 2009.



As a general rule, of course, every citizen owes a duty to appear to provide relevant testimony in court proceedings upon the issuance and service of an appropriate subpoena. The Legislature has fixed a statutory fee for witnesses, and a mileage rate for travel costs: Minn. Stat. § 357.22 provides that a witnesses required to provide testimony at a trial shall be paid a fee of $20 for each day and 28 cents per mile for travel to and from the court. These statutory fees were tendered to Mr. Cox when the subpoena was personally served upon him.


In this case, Mr. Cox is a salaried employee who will not be out of pocket for any sums incurred in having to testify in this contest action. While a certain amount of inconvenience and disruption is involved, that is part of the cost of this type of proceeding, and is a cost that all of the other public officials who have testified in this case have borne, from far flung county officials to the highest ranking election officials. The burden on Mr. Cox is no more and no less. His motion to quash should be denied.

Dated: February 26, 2009

Source: Contestees Memorandum in Response to City of Duluth Motion to Quash Subpoena via [PDF]

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