INTRODUCTION
The provisions of Minnesota Rule of Civil Procedure 60.02 allow relief from a
final judgment. While rarely used, the law recognizes that under certain circumstances, it
is appropriate to grant relief from an otherwise final judgment because the basis for that
judgment no longer exists. This is one of those unique occasions.
On February 10, 2009, this Court granted summary judgment to 23 of the 64
absentee voters represented by Mr. Nauen ("Nauen voters") and ordered the absentee
ballots of those 23 voters opened and counted as legally cast votes. Contestants did not
oppose the Nauen voters' motion for summary judgment, so long as the Contest Court
treated all similarly situated ballots in the same manner. Three days later, on
February 13, 2009, this Court ruled as a matter of law that ballots in ten different
categories are not legally cast and could not be opened and counted. Memorandum Op.
at 10. Seven of the 23 ballots on which the Court granted summary judgment on
February 10, do not comply with the standard articulated by this Court on February 13,
2009.
[Brief list detailing the seven voters by name along with reason for which their ballot was improperly counted.]
January 21, 2009 Affidavit of Charles Nauen.
In addition to these seven ballots, Contestants recently learned that the absentee
ballot of Hannah Gorski, which the Court ordered opened and counted on February 10,
2009, did not meet all of the criteria set forth in the Court's February 13, 2009 Order and
was based on incorrect information submitted in their original affidavits. Nauen Mem. of
Law February 20, 2009 at 15-16. Ms. Gorski did not sign and complete her absentee
ballot application; rather, her mother signed the application.
These eight ballots which the Court ordered opened and counted cannot be
squared with the Court's subsequent ruling on February 13, 2009 requiring strict
compliance with the statutory mandates before absentee ballots will be opened and
counted. It is no longer equitable to enforce a judgment because the basis for that
judgment has disappeared. It is, however, still possible to correct this error and thus put
all similarly situated absentee voters in the same position. Contestants request that this
Court vacate its prior summary judgment ruling and consistently apply the standard set
forth in its February 13, 2009 Order to the absentee ballots of the Nauen voters.
...
CONCLUSION
For all of the foregoing reasons, Contestants respectfully request this Court vacate
its February 10, 2009 Order in its entirety or, in the alternative, with respect to at least the
eight voters discussed above.
Dated: February 25, 2009
Source: Contestants Memorandum of Law in Support of Rule 60.02 Motion to Vacate Judgment via MNCourts.gov [PDF]