Who's paying for the Senate trial?

Anoka County Elections Manager Rachel Smith
Anoka County Elections Manager Rachel Smith took to the stand as she answered questions given by Joe Friedberg, representing Norm Coleman, during the Senate recount trial at the Minnesota Judicial Center.
AP Pool-Star Tribune/Elizabeth Flores

Absent the senate court battle, Richard Jessen says he would be up to what a lot of other people his age are doing.

"Reading a book, maybe being on vacation in Phoenix, enjoying my retirement," Jessen said.

Denise Reilly
Judge Denise Reilly listens to arguments during motions in the Senate vote recount trial Friday, March 6, 2009 in St. Paul, Minn.
AP Photo/Jim Mone, pool

Instead Judge Richard Jessen has come out of retirement in Minnesota's Seventh Judicial District. He is now in charge Judge Elizabeth Hayden's St. Cloud courtroom. Hayden is in St. Paul. She is one of the three judges hearing Norm Coleman's lawsuit.

"Judge Hayden is a friend of mine, and when I saw she got this appointment I said, 'if there is something I can do to help you let me know,'" Jessen said. "And so we chatted a little bit and I said well how long do you think this is going to take? And she said the lawyers initially thought 15 trial days. Well here we are, I think, in the sixth week."

Jessen said over the past several weeks, he's heard criminal cases and decided some family court issues. He's doing whatever he can to keep Hayden's courtroom on schedule.

Jessen said he is having fun and that the work makes him feel useful. But he's not back on the bench for free. The cost of substitute judges for each contest judge is part of budget for the trial.

The Director of State Court information John Kostouros, said the budget also includes the hotel, travel and meal costs of out of town judges Elizabeth Hayden and Kurt Marben and their clerks.

"We budgeted initially $100,000 just because we needed to have some amount set aside for additional costs," said Kostouros.

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Kostouros said the replacement judges get about $350 a day. The court reporter at the election trial is paid $180 a day. Kostouros would not speculate on how much the total bill might be.

Minnesota Secretary of State Mark Ritchie said state law is clear that if someone files a court challenge to the results of an election the challenger, Norm Coleman in this case, is responsible for the costs if the challenge fails.

"You have to be prepared to bear the cost if that challenge is frivolous," Ritchie said. "If that challenge turns out to be unsubstantiated, you have to know Minnesota law, Minnesota statue puts that cost burden on you."

The costs would not typically include attorneys' fees.

William Mitchell College of Law Professor Raleigh Levine said the costs would likely include items such as filing fees and witnesses-related expenses. Levine said the court costs would be miniscule compared to attorneys' fees.

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"Those costs in a case like this could be significant but not mind boggling," Levine said. "I mean thousands of dollars."

While Levine said she doubts the loser would be required to pay the winner's attorney fees, the three-judge panel cast doubt over that last week in a footnote to an order.

The footnote states that if the contestant loses, the contestant must pay the "fees and costs" associated with the trial. Levine said she thinks the judges made a mistake with their language.

Court officials say expenses, such as paying for substitute judges and for the room and board for two of panel judges, would not likely be charged to Coleman if he loses.

But Secretary of Ritchie said costs that counties are incurring to meet trial demands might be.

Anoka County Elections Manager Rachel Smith said her staff has been responding to a trial subpoena about once a week.

"We're spending one to two staff people one to two days each week for the last six weeks which is significant," said Smith.

Smith personally spent a week and a half testifying at the trial. She said she's been loosely keeping track of the additional expenses, but she doubts her country will end up getting reimbursed.

What's happening in Anoka County is happening in many other counties in Minnesota. Smith said it's not just money that's a problem.

"I've talked with others and we're all behind on our normal activities," Smith said. "We're getting a little concerned because we're trying to make sure we clean up everything from the 2008 election so they we can get adequately prepared for our upcoming odd year elections."

Should Coleman win his election lawsuit, Franken could be ordered to pay some of the costs. Levine, from William Mitchell College of Law said that would be entirely up to the court.

Retired Judge Richard Jessen who is filling in for Judge Hayden in St. Cloud says doesn't know how long his temporary job will last. He does know that he's won't be getting a vacation soon.

"I had some plans for April and I cleared those just in case this senate contest doesn't get done," he said.

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