Franken-Coleman Senate race goes to trial

  • Article by: KEVIN DUCHSCEHERE , Star Tribune
  • Updated: January 26, 2009 - 10:35 AM

Today, the Great Minnesota Recount gets turned over to a new cast of characters.

 In place of the state Canvassing Board, a three-judge panel will begin what could be a weeks- or months-long trial to decide who won Minnesota's U.S. Senate race. The action starts at 1 p.m.in St. Paul.

The judges -- from St. Cloud, Minneapolis and Thief River Falls -- are largely unknown outside their community's legal circles.

One made a controversial ruling in a cop-killing case. Another hangs her kindergarten diploma in her office. The third has "the patience of Job," according to a colleague, which might not be a bad qualification in the weeks ahead.

The three now will hear testimony and inspect evidence on the recount, which ended three weeks ago when the Canvassing Board certified results showing DFLer Al Franken with a 225-vote lead over Republican Norm Coleman.

The judges already have shown each side their capacity for firm action. On Thursday, they rejected Franken's motion to dismiss the lawsuit. The next day, they swept aside Coleman's request to have inspectors fan out across the state in search of problem ballots.

Elizabeth Hayden

Hayden, 62, of St. Cloud, is the panel's senior member. She has been on the bench since 1986, when DFL Gov. Rudy Perpich made her the first woman to serve as judge in central Minnesota's Seventh Judicial District.

Hayden became a social worker after graduating from the College of St. Benedict in 1968, and went to work at Willmar State Hospital and Stearns County Social Services. But the higher she climbed, she said later, the more she felt like she was losing touch with people. After a few years, she left Minnesota to go to law school in Oklahoma.

Hayden worked briefly in private practice in St. Paul before returning in 1981 to Stearns County as an assistant county attorney, where she handled child support and juvenile protection cases along with assorted civil matters.

"She's thorough, a stickler for decorum and civility. She doesn't like sideshows, and she expects you to be prepared," said Kim Pennington, a civil attorney in St. Cloud who has known Hayden since lining up against her in court when he was a public defender and she was a county prosecutor.

Once, when Pennington was trying a case before Hayden, his client's cell phone rang in the courtroom. Hayden, he said, was not amused. "To this day I'm convinced that I lost the case because the cell phone went off," he said.

One of the most noted of Hayden's many trials involved the 1996 shooting death of St. Joseph police officer Brian Klinefelter.

After a jury found 22-year-old Kenneth Roering Jr. guilty of murder, a juror retracted her vote to convict him. That revelation, along with other irregularities, prompted Hayden to grant Roering a new trial. He ultimately pleaded guilty, but it wasn't a popular decision in a community seeking closure.

"I don't believe you'll find her jumping to quick conclusions," said Stearns County Judge John Scherer. "She's the type of judge that will want to take in and absorb all the information."

Hayden is married to retired Ramsey County Judge Charles Flinn, who was appointed to the bench in 1980 by Republican Gov. Al Quie.

Denise Reilly

Reilly, 55, of Long Lake, became a Hennepin County judge in 1997 after several years in private practice and as a federal prosecutor. She was appointed by Republican Gov. Arne Carlson.

After Reilly graduated from William Mitchell College of Law in 1983, she went to work as a law clerk for U.S. District Judge Robert Renner. She practiced law with the Lindquist and Vennum firm in the Twin Cities until 1989, when she became an assistant U.S. attorney as chief of the narcotics and firearms section in Minneapolis.

Reilly currently handles civil and adult criminal cases, but in her 11 years on the bench she has spent the most time in juvenile court.

A survey taken in 2000 by the Hennepin County Bar Association found that 96 percent of the lawyers polled favored Reilly's reelection, more than all but one other Hennepin County judge.

"She was always a fair judge," said Cyrenthia Shaw, an attorney with the University of Minnesota's Office of Equal Opportunity and Affirmative Action and a clerk for Reilly in 2002. "She does take the time to listen to both sides and review all the materials ... She's good at cutting through the situation. She'll focus on the facts and she'll focus on the details." Outside the courtroom, Reilly is on the board of the Sheltering Arms Foundation and has served in positions at Loaves and Fishes, the Minneapolis Youth Coordinating Board, Ready for Success (an organization helping women move from welfare to work) and Trinity Episcopal Church. She also teaches trial skills at the University of Minnesota Law School. She is married and has two sons.

Kurt Marben

Marben, 56, a longtime Thief River Falls attorney, was made a judge in 2000 by Independence Party Gov. Jesse Ventura. He was named to a new seat in the Ninth Judicial District, encompassing 17 counties in northwest Minnesota.

A native of Grand Forks, N.D., Marben joined a Thief River Falls law firm in 1977 after graduating from the University of Minnesota Law School. He became a partner in a firm later known as Charlson, Marben and Jorgenson, and specialized in civil law areas including personal injury and product liability.

In 1994 Marben, then a hockey dad, represented the Thief River Falls Amateur Hockey Association as it challenged an order blocking the hockey club from selling pulltabs at a bar where illegal gambling by other parties had been found. Marben took no fee for the case, but the Minnesota Court of Appeals upheld the penalty.

Marben's first law clerk in 2001, Scott Knudsvig, said that the new judge approached his cases with an open mind. "I think all the litigants and parties that came before him got a fair shake," said Knudsvig, now a practicing attorney in Minot, N.D.

Minneapolis attorney Thomas Evenson, who clerked for Marben in 2002-03, said the judge made sure that everyone felt they were heard in court -- even in conciliation cases involving small claims.

"Every case before him, whether $100 or $1 million, you got the same treatment," Evenson said. "He's actually got the patience of Job. Attorneys liked appearing before him because he made sure everything was fair."

Marben, who sits on the Supreme Court's advisory committee on general rules of practice, is married and has three children.

Staff researcher John Wareham contributed to this story. Kevin Duchschere • 651-292-0164

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