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Senate trial: What's a witness worth?

ST. PAUL -- The three U.S. Senate election trial judges are considering whether local officials testifying in the case should be paid more than a small stipend for their time and travel costs.

The reimbursement issue arose for the first time Friday, after five trial weeks, when a Duluth attorney fought a subpoena because she said the cost incurred by that city's clerk to testify is 10 times what Al Franken's campaign provided.

"All we're asking is for the city of Duluth and its citizens not to finance this litigation," Deputy City Attorney Alison Lutterman told the court Friday.

The issue capped a busy trial day Friday that included debate over whether a witness for Norm Coleman can testify - after she already was blocked from testifying and later reinstated - and a decision by Franken's campaign to drop its claim against 61 Becker County ballots.

The Becker ballots were to be part of Franken's case, which his attorneys expect to start as soon as Monday.

Coleman attorneys plan to finish their case Monday.

Attorneys for the former Republican senator argued Friday that the judges should consider reviewing all 288,000 absentee ballots cast in the election because they include votes that would be considered illegal under a recent judicial ruling.

"How can we undo something once these votes have been counted?" Judge Kurt Marben of Pennington County asked.

Coleman attorneys suggested one fix could be to proportionately reduce the number of votes cast for each candidate in each precinct. The campaign suggested the judges also could reconsider their recent ruling that deemed illegal some absentee ballot categories at play in the trial.

"The fact that a remedy is challenging and perhaps difficult doesn't mean that it can't be done," Coleman attorney Jim Langdon told Marben.

Franken attorney Marc Elias said Coleman's team is trying to cast doubt on the trial.

Coleman is challenging Franken's 225-vote victory.

State elections officials said they agree with the Duluth witness reimbursement request because they believe local officials who have traveled from all over the state to testify are not being reasonably reimbursed.

Deputy Secretary of State Jim Gelbmann said his office's view is that the witness payment of $20 a day plus mileage is insufficient. County auditors' time and expenses far exceed that.

Franken's campaign opposed the Duluth measure, claiming no other county or city official has made such a request. Attorney Kevin Hamilton said that court rules do not require additional payments.

"It's their obligation," Hamilton said. "It's part of their job as election officials of the state."

That job does not mean local property taxpayers should have to foot the bill for the time and expenses required when government workers are called to testify in a lawsuit settling a statewide election, Gelbmann said.

Duluth wants Franken's campaign, which subpoenaed Clerk Jeff Cox, to reimburse him $1,150, not the $105 he was offered.

Lutterman told the court that the city, which is facing budget problems, was exercising its right to challenge the reimbursement rate. She said Cox should be paid more because state rules call for "reasonable compensation" when testimony relates to a profession.

The city's request suggests Cox should be reimbursed at $60 an hour for his salary and benefits plus the cost of meals, mileage, parking, potential hotel accommodations and "the value of his time away from his family."

Lutterman traveled from Duluth to argue the issue in the St. Paul courtroom, and charged the city $150 for mileage reimbursement. Lutterman said she had asked to make her argument by phone, thereby avoiding the travel, but was told the court wanted the arguments done in the courtroom.

Other election officials estimate their costs to testify far exceeded the Cox request.

Gelbmann said Washington County election official Kevin Corbid estimated the cost for his two and a half days of testimony was $4,300, when including his time to prepare and testify and the time of an assistant county attorney who sat in on the testimony.

That cost is more than $5,000 for a Dakota County official who spent three days on the witness stand early in the trial, Gelbmann said.

In a written objection to Duluth's request, Franken's campaign said appearing as a witness is inconvenient but "critically important."

"Those officials, however, have appeared without complaint, often in inclement weather, from far-flung locations, and awaited the call to provide testimony and evidence before this court," Franken's attorneys wrote.

"Appearing before this court imposes no greater burden on Mr. Cox than the burden imposed on auditors from Crow Wing, Lyon, Becker or Beltrami counties, all of whom appeared in this court without complaint, as did the highest-ranking election officials in the state," the attorneys added.

Becker County officials will not have to explain their unusual handling of a group of ballots in the U.S. Senate election trial.

Franken's campaign Friday dropped its objection to the inclusion of 61 ballots from the western Minnesota county.

The Democrat's attorneys had raised concerns about how county officials handled those ballots, which were misplaced for a few days beginning election night. The campaign also claimed it was not told of that problem until after the ballots were counted for the first time during the statewide recount.

Becker County Auditor-Treasurer Ryan Tangen has said that on election night the ballots were mistakenly placed in a box that was not moved to an election center, where ballots are stored, until they were found a few days later.

The ballots then were stored securely until the recount, when state officials advised Becker County officials that they could count those ballots, Tangen said.

"We made a decision for the sake of judicial efficiency and keeping the election contest on track and moving that we would agree to withdraw the Becker County claim if it was going to be the source of delay and consternation," Elias said.

Coleman netted 22 votes out of that pile of 61 ballots, Franken's campaign said.

Scott Wente works for Forum Communications Co., which owns the Bemidji Pioneer.