12-0320-16254-CV

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Judy Lindsay, Complainant,   v.   Joyce Peppin, Gregg Peppin, Katie Nadeau, and the Joyce Peppin Volunteer Committee, Respondents.

ORDER FINDING PROBABLE CAUSE

 

The above-entitled matter came on for a probable cause hearing before Administrative Law Judge Steve M. Mihalchick on November 8, 2004, at the Office of Administrative Hearings pursuant to Minn. Stat. § 211B.34 to consider a Complaint filed by Judy Lindsay on October 27, 2004.

Matthew P. Franzese, Leuthner Law Office, 1311 Broadway, Suite 2, PO Box 637, Alexandria, MN 56308, appeared by telephone on behalf of Complainant.  Matthew W. Haapoja, Trimble & Associates, Ltd., 10201 Wayzata Blvd, Suite 130, Minneapolis, MN 55305, appeared on behalf of the Respondents.

Based on the record in this matter and for the reasons set out in the following Memorandum, the Administrative Law Judge makes the following:

ORDER

IT IS HEREBY ORDERED THAT:

1.               There is probable cause to believe that Katie Nadeau and the Joyce Peppin Volunteer Committee violated Minn. Stat. § 211B.06 by making two false statements in a letter Nadeau prepared and disseminated October 17, 2004, knowing the statements to be false or with reckless disregard of whether they were false.

2.               The foregoing issue is referred to the Chief Administrative Law Judge for assignment of a three-judge panel to conduct an evidentiary hearing.

3.               There is not probable cause to believe that Joyce Peppin or Gregg Peppin violated Minn. Stat. § 211B.07.

4.               As to Joyce Peppin and Gregg Peppin, the Complaint is dismissed.

Dated November 12, 2004

 

 

                                                                      s/Steve M. Mihalchick

                                                                      STEVE M. MIHALCHICK

                                                                      Administrative Law Judge

 

 

NOTICE OF RECONSIDERATION RIGHTS

Regarding the dismissal of the Complaint as to Joyce Peppin and Gregg Peppin, Minn. Stat. § 211B.34, subd. 3, provides that the Complainant has the right to seek reconsideration of the dismissal by the Chief Administrative Law Judge on the record.  A petition for reconsideration must be filed with the Office of Administrative Hearings within two business days after this Order.

If the Chief Administrative Law Judge determines that the assigned Administrative Law Judge made a clear error of law and grants the petition, the issue will be heard as part of the evidentiary hearing being scheduled.

MEMORANDUM

Under Minn. Stat. § 211B.34, subd. 2, at this stage of the proceeding, a complainant must present substantial evidence, which may include reliable hearsay, to support a belief that there is probable cause to believe the violation of law alleged in the complaint has occurred.  Probable cause is not specifically defined in the statute, but it is analogous to the probable cause standard in a criminal proceeding.[1]  Probable cause is “a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances.”  The facts alleged in a complaint and presented at the probable cause hearing are to be considered in the light most favorable to Complainant.  A respondent must show that the facts relied upon to establish the elements of the violation are “inherently incredible”.[2] 

Arlon Lindner was an independent candidate in the 2004 election for the Minnesota House of Representatives in District 32A.  Lindner was the incumbent, had held the position for twelve years, and had previously run and been elected as a Republican.  Joyce Peppin ran for the same legislative seat as a Republican.  She had been was endorsed by the Republican Party of Minnesota this year over Lindner.  Complainant is Lindner’s Campaign Manager.  Peppin won the general election; Lindner placed third behind a Democrat.  Katie Nadeau is Campaign Manager of the Joyce Peppin Volunteer Committee.  Gregg Peppin is Joyce Peppin’s husband. 

One of Lindner’s campaign workers was Daniel Jaeger.  He is not a resident of District 32A and, thus, is not a voter there.

On the evening of October 12, 2004, Jaeger parked his car in the driveway of the home of Bill and Lauren Adams Maple Grove in the District.  Jaeger had known Mr. Adams from previous Republican activities.  The Adams had a Peppin sign in their yard.  Jaeger went to the door and rang the door bell.  Mrs. Adams did not know or recognize Jaeger and refused to answer the door.  She called the police.  Jaeger walked next door to the neighbors’ house.  A police officer arrived minutes later.  As Mrs. Adams describes it, Jaeger returned to the Adams’ home, identified himself as a Lindner worker and proceeded to verbally harass her about the Peppin sign, attempted to scare and intimidate her about supporting Peppin and having the Peppin sign, and was told to leave by the police officer.[3]  The police report mentions nothing of a discussion between Jaeger and Mrs. Adams or an order to leave.  It says only that Jaeger was “on a political campaign,” and “No problems.”[4]  Jaeger denies any threatening, harassing, or intimidating behavior.[5]

Later that evening, Mr. Adams called Joyce Peppin and complained about Jaeger’s behavior toward his wife.  Peppin later discussed it with Nadeau, her Campaign Manager.  They also had at least one other complaint from a person with a Peppin sign about Jaeger’s statements to that person.  Peppin and Nadeau were also concerned about the 50 or so Peppin lawn signs that had disappeared, many replaced by Lindner lawn signs.  Nadeau called Lindner to discuss the problems.[6]  Nadeau and Lindner testified to different versions of the conversation.

On October 17, 2004, Katie Nadeau wrote and mailed a letter to Peppin supporters who had allowed Peppin lawn signs on their property.[7]  The Nadeau letter said some people with Peppin lawn signs had been confronted and pressured by a Lindner supporter about their support of Peppin.  The letter states, “One of these exchanges resulted in Mr. Lindner’s worker being escorted off the property by a police officer.”[8]  Complainant alleges this statement is false because Jaeger was not escorted off the property.  Viewing the evidence in the light most favorable to Complainant, there is probable cause to believe the statement is false and made knowing it to be false or in reckless disregard of whether it was false.

The Nadeau letter says that Nadeau had spoken to Lindner and then states, “Unfortunately, he is taking no responsibility for such actions of his workers and I was led to conclude that he authorizes such activities.”[9]  Complainant alleges this statement is false because Lindner’s worker, Jaeger, engaged in no such actions, (harassment and intimidation) and that Lindner does not authorize such activities.  Again viewing the evidence in the light most favorable to Complainant, there is probable cause to believe the statement is false and made knowing it to be false or in reckless disregard of whether it was false.

The Complaint alleges that Peppin and the Peppin Volunteer Committee sent out a campaign piece titled “Voter Alert!” that contained false statements in violation of Minn. Stat. § 211B.06, subd. 1.  Complainant withdrew that allegation during the probable cause hearing.

Complainant alleges that it was reported to her that Joyce Peppin was angry at a Lindner volunteer and threatened the volunteer’s employment for supporting Lindner.  Complainant also alleges that it was reported to her by a Lindner volunteer that Gregg Peppin had called the volunteer’s employer in an attempt to get that volunteer fired for supporting Lindner.  In both instances, the volunteer referred to was Jaeger.[10]  Complainant alleges such conduct violates the prohibition in Minn. Stat. § 211B.07 on the use or threat of harm, loss of employment, or the like to compel an individual to vote for or against a candidate.

At the probable cause hearing, Respondents moved to dismiss the allegation because Jaeger is not a resident of District 32A and could not vote for or against either Lindner or Peppin.  Complainant argued that the statute should be read broadly to also prohibit indirect undue influence.  That position must be rejected.  Minn. Stat. § 211B.07 is a punitive statute that should be construed strictly.  Persons subject to penalties must be given fair notice of their required conduct.  Even if the allegations are true, Jaeger was not being compelled to vote for or against any candidate.  Under the clear language of the statute, there is not probable cause to believe there has been a violation of Minn. Stat. § 211B.07.

S.M.M.