by Steve Timmer

Aug 19, 2012, 5:30 PM

Counsel, you didn’t plead a cognizable claim

We talked about federal judge Donovan Frank’s dismissal of the suit to end election-day registration in Minnesota on the LeftMN Radio Hour (in the last segment). Jim Ragsdale of the Strib posted a copy of the decision that you can read here, but it is an interesting case that is worth exploring in a little more detail.

Here’s a bit from the MinnPost story at the first link:

“As a preliminary matter, the Court finds that plaintiffs have failed to state a claim against defendants upon which relief may be granted,” Frank wrote in his order, adding that the groups haven’t exhausted avenues available to them under state law.

One can imagine the colliquoy between Judge Donovan and Erick Kaardal, the attorney for the plaintiffs, at oral argument.

JD: Counsel, you haven’t pleaded a claim on which I could grant you any relief.

EK: Did too.

JD: Sorry, did not.

EK: Did too.

JD: [patiently] Counsel, your complaint — which you already amended once — claims a violation of the First, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution.

EK: [proudly] Yes, it does, your Honor.

JD: Well, good for you, but nowhere do you describe how your clients’ constitutional rights were violated.

EK: Well, it’s obvious to me.

JD: But it isn’t to me; you don’t even allege a violation of 42 U.S.C. § 1983. That’s the usual route for making a case of the violation of a plaintiff’s constitutional rights.

EK: I know that! But I could have put that 42 U.S.C. § 1983 in the complaint, couldn’t I . . . have?

JD: Well, yes, I suppose so.

EK: So let’s just pretend like I did.

JD: Sorry, counsel, I can’t do that.

(As an aside, this is exactly what the RPM and Tony Sutton argued in the case of the complaint brought against them by Common Cause: we might have been able to set up a legal separate organization to carry out the recount, so let’s just pretend we did.)

And this kids, is why Erick Kaardal, counsel for the Minnesota Voters Alliance, et al., is on a fool’s errand if he appeals this case to the Eighth Circuit, as he has promised he would do. Regardless of what you think of the merits of the plaintiffs’ case (the judge doesn’t think much, as he goes on to explain after he delivers the bad news about the fatal failure to state a claim defect), the case is such a procedural stinker that an appeal is hopeless. The Eighth Circuit surely isn’t going to let Kaardal amend his complaint on appeal.

Start over, Erick, if you’re serious.

But this isn’t even the really interesting part of the case. We’ll leave that until next time.