Carney is calling Minnesota Law Schools and large Twin Cities law firms to request help

Texts of outgoing e-mails are below

Attorneys have withdrawn, Carney is acting pro se, seeks to proceed in forma pauperis unless and until money is raised for filing fees and court costs

Carney plans further disclosure on personal financial situation in Monday News Release 

Contact: Bob Carney Jr. -- (612)-824-4479 (home and business) -- bob@republicancontract.com

For immediate release                                                                              

Minneapolis, MN, January 20, 2010 -- Minneapolis Moderate Progressive Republican candidate for Governor Bob Carney Jr. is calling on the Legislature, the Minnesota legal community, and citizens to join in defending Minnesota's Political Contribution Refund ("PCR") program.  The texts of e-mails Carney is sending are below this news release.

Yesterday the Minnesota Supreme Court agreed to hear the Brayton unallotment lawsuit on an expedited basis.  That case is scheduled to be heard March 15th.  Briefs are reported to be due beginning February 9th.

"It has been widely reported that the Minnesota Supreme Court has put unallotment on a fast track.  I think the reality is more along this line: the Unallotment Monster has dragged the Minnesota Supreme Court on to both a fast track and a slippery slope.  This isn't exactly something the Supreme Court volunteered for.  Instead, the Legislature and the Governor have joined in some kind of three-leg, three-ring, three-branch Race To The Top.  I just hope this wound up bound up Gov-Leg tag-team doesn't topple over everything," Carney said. 

"Here's a cooler take on the proper role of the three branches.  Because the Governor violated state statutes in his unallotment process, the Courts need not step onto a slippery slope of constitutional issues and political questions.  Instead, the Courts can and should rule on narrower statutory grounds.  The Legislature can resolve the separation of powers issue both properly, and more effectively, by first studying the impeachment process, and then using it if necessary," Carney said.

Common Cause is considering bringing another lawsuit to challenge the unallotment of the Political Contribution Refund. 

"I already have a lawsuit that can be appealed by right, and I can request that it be consolidated with Brayton.  Even if it is not consolidated, an Appellate Court can take notice of what the Supreme Court does, and has broad equitable powers to ensure that justice is done with respect to the Political Contribution Refund program," Carney said.

Both Brayton (more so) and Carney v State of Minnesota have been widely followed and reported on.  Carney has had about 1,000 downloads of filing documents from www.republicancontract.com, including over 400 downloads of the Complaint.

Constitutional vs Statutory issues and the legal process

In her memorandum on the Brayton case, Judge Gearin ruled the Governor used unallotment in a way that violated the separation of powers doctrine.  But the Complaint in Brayton also raised a narrower issue: whether the Governor's unallotments were done according to the requirements of statutory law.

"With respect to statutory violations, the Brayton case and my case raise very similar issues," Carney said. 

The Notice and Complaint are filed together as the first documents in a lawsuit.  Unless a Complaint is amended, only claims for relief made in the Complaint and supported by factual allegations can be considered by the Court.  The defendant can challenge subsequent filings, claiming that issues and arguments raised were not in the Complaint, and should not be considered.  The defendant can also offer provisional arguments on the merits of the plaintiff's issues and arguments, to be considered only if the Court determines the issues were in the Complaint.

In Carney v State of Minnesota the defendant claimed Constitutional issues were not raised in Carney's complaint.  Provisional arguments were not made on the merits of Carney's Constitutional claims.  The defendant also asserted some of Carney's claimed statutory violations were not in the Complaint, but did offer provisional arguments on the merits.

Political aspects and checks and balances

Carney offered this analysis:

"Regarding the dismissal of my case, the Court must decide if I have a claim for relief that is sufficiently grounded in the Complaint.  I think a court could conclude that I have a claim for relief based on statutory violations, but not on Constitutional violations.  The court could then proceed to decide my motion for a preliminary injunction based on a violation of statutes -- not on any Constitutional question. If the Court ruled in my favor based on statutes, this would raise an immediate question regarding Brayton: since the claims regarding statutory violations are so similar, shouldn't that case also be decided on narrower statutory grounds, rather than on Constitutional grounds?"

"Judge Gearin's holding that Governor Pawlenty 'crossed the line' and violated the Separation of Powers has been widely reported.  From a political point of view, I can understand why some would prefer to have the separation of powers on center stage in the Complaint for any and all 'unallotment lawsuits' that now come forward.  Rulings might then continue along the line of Judge Gearin's memorandum.  However, I question whether it was necessary for Judge Gearin to reach the Constitutional question in the Brayton case.  It is widely held that the Courts should stay away from Constitutional issues when possible.  My case might be in some sense 'politically incorrect' -- it might force the issue of a narrow or a broad ruling: leaving an Appellate Court no choice but to decide the question on statutory grounds.  That would tend to keep the Courts more on the sidelines -- right where I want them to be.  We face enough challenges to maintaining a nonpartisan judiciary as it is."

"Regarding checks and balances: the Legislature should properly look to its own impeachment powers, rather than to the Courts." 

Spell checks and balances -- or a blank check and no balances?

Carney checked the spelling for "Pawlenty" in Open Office Writer, and back came:

"Parliament".

"Those darn computers -- they're just getting smarter and smarter all the time.  Spell check is getting 'Plenty' close to the current boots on the facts on the ground," Carney observed.