Foley’s approach is to figuratively don a robe, as a state Supreme Court justice might, and dig into one of the nine election-problem scenarios that Coleman’s brief raises about his contest with Al Franken to represent Minnesota in the U.S. Senate.

He discovers more complexity and uncertainty in applying state law than he expected to find, at one point deciding it all hinges on the meaning of the word “satisfied.”

These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4).

It’s Foley’s field — he’s a professor and election-law director at Ohio State’s Moritz College of Law — so you’d think he would enjoy a chance to romp in it.

But Foley doesn’t sound so happy, perhaps because, as he told the Minnesota Independent in late February, he has been rooting for a Coleman-Franken resolution that would rank among the best-settled disputed elections in American history.

He expressed hope then that a well-written, unanimous ruling from the election-contest trial court, even if appealed to the state’s high court, might leave winners and losers alike satisfied that fairness had prevailed and justice had been served.

The trial court did issue a unanimous ruling. But now Foley sounds less confident that the appeal can be handled with dispatch. Here is the conclusion to Foley’s 5,000-word (and 35-question-mark) essay:

What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply. But I’m not betting that complete clarity will reign in time for oral argument. And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).

One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.

I, for one, didn’t think there needed to be an appeal in the first place. As I’ve written elsewhere, the demands of democratic legitimacy can be satisfied by a fair trial before a well-structured panel, as this three-judge court was. In the context of a major statewide election, where the need for closure is especially pressing, democratic legitimacy does not demand “de novo” review of the relevant legal questions by a second multi-member judicial panel, however fair it also might be in its consideration of the very same questions.

Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry. The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.

In a motion for an expedited schedule filed with the state’s high court Tuesday afternoon (pdf), Franken attorneys Marc Elias and David Lillehaug cite quotes from Coleman and Cullen Sheehan, a Coleman aide, that appeared in the St. Paul Pioneer Press and MinnPost.

The quotes show the Coleman camp has already been hard at work at their appeal briefs, Franken’s motion argues, so let’s put the appeal on a fast track. But taking Coleman at his quoted words, it’s an idea he agrees with.

“We are hoping the court gives us an accelerated schedule, so we are actually working on the briefs now,” Coleman told the PiPress on April 15.

But Sheehan told MinnPost’s Eric Black a slightly different story two days later.

In the 2000 Bush v. Gore recount case, the U.S. Supreme Court only allowed a few days for briefs to be filed. The reason the campaign didn’t immediately appeal the election contest court’s April 13 decision giving Franken a 312-vote win, Sheehan told Black, was so they would have more time to work on their appeal brief — in case the accelerated court schedule his boss hoped for was too accelerated, apparently.

So the Franken campaign urges what the Coleman camp either wanted or was bracing for: a hurried schedule of filing deadlines that has the final brief arriving at the high court on May 4 — a lucky 13 days away.

Photo: The UpTake

Joe Friedberg, the star attorney who gave the closing arguments for Norm Coleman last week in Minnesota’s Senate trial, predicts his client won’t prevail in the election contest without appealing to the state Supreme Court. When the current three-judge panel rules, Friedberg told a local radio audience, ”Franken will still be ahead and probably by a little bit more (than his 225-vote margin in the recount).”

Friedberg was interviewed Wednesday by Ron Rosenbaum on “The Dan Barreiro Show” on KFAN-AM (mp3, starts at 22:22). A partial excerpt:

ROSENBAUM: Joe, are you done?

FRIEDBERG: Yes (laughing), I’m done.

ROSENBAUM: Let me ask you in a different way. Is Norm done?

FRIEDBERG: Well, I think that we’ve been trying this case with the appeal record in mind, and that’s where we’re going, and it’s going to be a very quick appeal, and then I’ll know whether or not it worked.

ROSENBAUM: Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

FRIEDBERG: I think that’s probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was a constitutional argument, and it’s an argument suitable for the Minnesota Supreme Court, not for the trial court. So we’ll see whether we were right or not.

The dialogue then veered into the background of the equal-protection argument Coleman’s side has asserted, from its past application in elections that featured racial and ethnic discrimination to the Bush v. Gore case in 2000.

Friedberg said the U.S. Supreme Court didn’t expect that case’s circumstances to recur, “where different standards were applying in different electoral precincts … The court didn’t think they’d ever look at another one. Well, hi. We’re here.”

Later:

ROSENBAUM: In point of fact, our system isn’t capable of handling it, right?

FRIEDBERG: No, because frankly, no matter what happens, nobody will ever know who got the — quote — most votes. Nobody will ever know that. …

ROSENBAUM: So we could still be awhile before this thing gets decided?

FRIEDBERG: Yeah, I think that’s clearly true.

Hat tip: Hotline On Call (via MnPublius).

Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”