Ramsey County District Judge Kathleen Gearin didn’t buy plaintiff Robert Carney’s argument that the state’s Political Contribution Refund (PRF) program was a tax refund and not the kind of spending program that is vulnerable to gubernatorial unallotment (pdf).

Common Cause didn’t buy it either, and for that reason didn’t join the suit brought by Carney (who announced his candidacy for governor this week). But the group has been threatening since last summer to go to court on behalf of the PRF, which reimburses Minnesotans who make small political donations. And now they really might, said Mike Dean, the group’s executive director, in a statement.

Gearin’s ruling against Pawlenty’s use of unallotment in the earlier Brayton case “places a powerful check on the power of the state’s executive branch,” said Dean, “and the unallotment of the PCR should be viewed in that light.”

Photo: US Army

Gov. Tim Pawlenty says he’ll appeal a judge’s injunction blocking unilateral budget cuts he made last summer from taking effect. And he won’t rule out another round of unallotment cuts in coming months, based on the state’s latest dismal financial forecast.

Pawlenty’s comments came at a Thursday press conference called on less than an hour’s notice in response to a temporary restraining order issued Wednesday by Ramsey County District Court Judge Kathleen Gearin.

In her order, Gearin reinstated cuts to a state food program that Pawlenty made under his unallotment authority — already a bone of contention between the Republican governor and DFL-led state Legislature.

Pawlenty said Gearin had “inserted herself into the middle of a political dispute.” He vowed to file an appeal next week.

A special legislative session on delaying state aid payments to school districts — another aspect of his unilateral budget-cutting — is a possibility, Pawlenty said, if agreement can be reached beforehand.

Pawlenty’s appeal was anticipated by attorney David Lillehaug, former U.S. Attorney and DFL activist. In an interview with The UpTake, Lillehaug also predicted that others affected by Pawlenty’s unallotment cuts would follow suit:

This is one of the most important court cases in Minnesota legal history. And certainly this opinion is just a big, big defeat for Gov. Pawlenty. …

What Judge Gearin did was send a message to this administration that laws are to be made by the Minnesota Legislature, and if the governor tries to both make and execute a law, then that is an abuse of power. It is unconstitutional. It violates the separation of powers under the Minnesota Constitution. …

In my judgment, Judge Gearin’s decision is sufficiently broad to call into question the entire unallotment scheme that this governor perpetrated. It’s now my hope that there will be many, many organizations, including our institutions of higher education, our schools and a number of human services programs that should now try to intervene in this lawsuit and seek the same relief that was granted to these six people.

In the background of the already dramatic separation-of-powers tug-of-war is Pawlenty’s ambition to become president. Lawsuits against his unilateral budget cutting had already garnered him favor among conservative pundits, and his promised court appeal could bring more accolades from Republican activists.

[Via Minnesota Public Radio, Associated Press]

Elsewhere in Minnesota news this morning …

STATEWIDE: Candidates beg for year-end donations. Most, like R.T. Rybak, also bleg. [Associated Press; Twitter; Wiktionary]

MINNEAPOLIS-ST. PAUL INTERNATIONAL AIRPORT: Fox news of a different sort. [Minnesota Public Radio]

MONTEVIDEO: Government workers stave off cuts by shaving raises. Cities are trying all kinds of tricks to accomodate reductions in Local Government Aid. [West Central Tribune]

MINNEAPOLIS: First razed, now praised. The Heritage Preservation Commission orders the remaining rubble from a historic house protected. [Twin Cities Daily Planet]

ST. CLOUD: Blades come out after library’s demise. The city puts a skating rink on the site of the old library. [St. Cloud Times]

WASECA: Tweets bite GOP state senate candidate. Mike Parry once termed Obama a “Power Hungry Arrogant Black Man” on Twitter. [Blog of the Moderate Left]

The ruling reverses cuts to the Minnesota Supplemental Aid Special Diet program retroactively to Nov. 1, pending a hearing in the case set for March 1, 2010.

But the order doesn’t affect Pawlenty’s unallotment cuts to other programs. Nor does it prohibit Pawlenty or the state Legislature “from the exercise of their legitimate constitutional power in light of the current budget issues facing the State of Minnesota.”

The suit was filed by six Minnesotans on behalf of themselves and others who either receive or would be eligible to receive the aid.

Acknowledging her own duty to “tread lightly when dealing with ’separation of powers issues,’” Ramsey County District Court Judge Kathleen Gearin wrote in her order (pdf): ”It is equally important that the Governor tread lightly when dealing with separation of powers issues.”

Gearin is familiar to many from her service a year ago on the State Canvassing Board overseeing the U.S. Senate election recount between Al Franken and Norm Coleman.

She was careful to say in issuing the restraining order that her decision was based on process, not policy, considerations:

It is important that all parties understand that the decision made by this Court today has nothing to do with the merit or lack of merit of the individual programs unalloted by the Governor. The Court’s decision was based on the way he unalloted, not what he unalloted. … Those budget and policy decisions are not the business of the courts unless they are made in a way that violates the Constitution.

Gearin’s objections don’t sound favorable to Pawlenty:

The authority of the Governor to unallot is an authority intended to save the state in times of a previously unforeseen budget crisis, it is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiations with the legislature or to rewrite the appropriations bill.

[Via MPR and AP]

Elsewhere in Minnesota News this morning …

STATEWIDE: Local property taxes up 3.5 percent. That’s an estimated average; the truth comes out at Truth-in-Taxation hearings starting next week. [Associated Press]

RAMSEY COUNTY: She gets put on the Coleman-Franken recount board, the unallotment lawsuit, now the dad-shirt case. Doesn’t Judge Kathleen Gearin deserve a “Stay Out of the News Free” card?” [St. Paul Pioneer Press]

STATEWIDE: Al Franken’s bill would aid homeless kids. Bill would help them stay in the same school when possible. [ECM Publishers]

OWATONNA: Texts (both kinds) prompt race tensions. White kids and Somali kids are fighting after anti-Somali writings circulate. [Star Tribune]

MOORHEAD: Native Americans in college. They’re the focus of a national conference today.  [Associated Press]

ALBERT LEA: “Pay-to-play” charges could sink junior-league puck squad. The whistleblower is a bowling alley owner in Elkhorn, Neb. [Albert Lea Tribune]

The final step in the statewide manual recount of the U.S. Senate race is underway. Shortly after noon, the five-member canvassing board began examining the roughly 1,500 ballots that have been challenged by the campaigns of Sen. Norm Coleman and Al Franken.

The process started orderly enough, with the board unanimously rejecting the first of 441 contested ballots put forth by the Franken campaign. Chief Ramsey County Judge Kathleen Gearin then offered a sentiment likely shared by her fellow canvassing board members. “Can I just say it felt real good to get started on this?” she observed.

By the end of the first hour, when the panel took a break, Coleman had picked up 17 votes while Franken had gained 4. Those numbers are not likely reflective of any trend, however, since all of the challenges considered were from the Democrat’s campaign, meaning they are more likely to accrue in the Republican’s favor.

There were signs that the process will not be without turbulence. An early ballot (pictured) considered by the canvassing board displayed a mark in between the spaces allocated for Coleman and Independence Party candidate Dean Barkley. Local election officials had initially determined that it was a vote for Coleman. The panel, however, split on their appraisal of the voter’s intent, ultimately ruling that it should count for neither candidate — a loss for the Republican.

Before the canvassing board began inspecting the contested ballots, attorneys for each campaign were given five minutes to address the panel. Tony Trimble, representing the Coleman side, expressed concern that in some cases both original and duplicate ballots may have been included in the recount, meaning that the vote would have been tallied twice. “We now face a situation of double votes,” Trimble said. “This has occurred in at least 137 precincts that we are aware of.”

Marc Elias (pictured), representing the Franken campaign, pooh-poohed the possibility that some votes have been double counted. Instead he suggested that the Republicans are now trying to change the rules of the recount. “Those were the rules that we were given, and neither party objected to those rules that we were given,” he said. “It seems to me that today … is a bit late in the process for us to now say these rules which the Secretary of State set forth need to now be the subject of a intensive audited review.”

The canvassing board didn’t immediately act on the issue of purportedly double-counted ballots, punting that discussion to a later time. They then began the painstaking process of examining the contested ballots. The panel is expected to continue this process through at least 5 p.m. today and hopes to conclude it by Friday.

“We do not have the authority to review rejected absentee ballots,” said board member Kathleen Gearin, a Ramsey County District Court judge. “That’s the bottom line.”

Minnesota Supreme Court Chief Justice Eric Magnuson noted that the panel’s mandate only extends to recounting votes that have already been cast. “Rejected ballots are not cast ballots,” he said.

But the ruling doesn’t necessarily mean that improperly rejected absentee ballots will not be included in the recount. Under state law, such ballots can only be disallowed for one of four reasons. The canvassing board was uncertain what directive — if any — to provide local election officials for dealing with ballots that have been rejected for reasons that don’t fit any of those criteria.

The discussion was prompted, in part, by a letter from Hennepin County Attorney Michael Freeman seeking guidance in reviewing whether absentee ballots were improperly rejected. “I have very little doubt that in reviewing the rejected absentee ballots cities and counties will find a limited number of unintentional errors,” Freeman wrote.

He went on to suggest a system whereby local election officials would sort rejected ballots into five piles, indicating either the reason that they were disallowed or that no basis could be determined for the ballot being thrown out. “In this way, cities and counties would, at least, be afforded the opportunity to identify and seek to correct erroneous determinations that a ballot should be rejected,” Freeman wrote.

The canvassing board didn’t rule on the issue this morning, but rather asked for advice on the matter from the Minnesota Attorney General’s Office. The panel will then reconvene at a date yet to be determined (but presumably next week) to again consider the topic.

In the meantime, it’s possible that the issue of rejected absentee ballots will be taken up in the courts. The Franken campaign currently has a case pending in Ramsey County District Court related to the issue, and last week a voter whose absentee ballot was rejected filed a lawsuit in Hennepin County District Court.

Two of the canvassing board members — Gearin and fellow Ramsey County Judge Edward Cleary — were adamant that all properly cast absentee votes should be counted. “It’s important that we convey the message that we take their right to vote as serious as anyone else’s,” Cleary said.

Their views were contrasted slightly by the statements of Minnesota Supreme Court Justices G. Barry Anderson and Magnuson, both of whom were appointed by Republican Gov. Tim Pawlenty. The duo seemed more concerned with maintaining an orderly and speedy process than in making certain that all properly cast ballots are included in the recount. “At some point in time in the process you’ve got to stop counting,” Magnuson said.

But attorneys for the group successfully argued that the hearing should be postponed so that they can have more time to obtain and examine the evidence against their clients. The six defendants are now slated to appear back in court on November 10.

But a meeting slated for this week before Chief Ramsey County Judge Kathleen Gearin will likely alter that schedule. The eight cases are expected to be assigned to a single judge so that they can proceed more efficiently.

The RNC 8 members were arrested in the days leading up to the Republican National Convention and charged with a single count of “conspiracy to commit riot in the second degree in furtherance of terrorism.” The criminal complaint alleges that they were involved in an elaborate, nationwide plot to disrupt the convention that included plans to kidnap delegates, attack cops with urine and molotov cocktails and ultimately bring the proceedings to a standstill.

Attorney Larry Leventhal, who is representing Max Jacob Specktor, said after the aborted court hearing that the defense team needs additional time to scrutinize the evidence and tactics used to build the case against their clients, such as the use of confidential informants. “We really think it’s not going to show that there was a conspiracy to riot in support of terrorism,” he said. Leventhal added that the attorneys also want to examine what role the Federal Bureau of Investigation played in the investigation. “We believe they were probably directing the operation,” he said.

The other defendants are Nathanael David Secor, Luce Guillen-Givins, Robert Joseph, Erik Charles Oseland, Garrett Scott Fitzgerald, Monica Rachel Bicking and Garrett Scott Fitzgerald