6-0320-16263-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

 

 

Steve Sviggum, Chairman, House Republican Campaign Committee,

                                             Complainant,

vs.

 

Minnesota DFL Party, Mike Erlandson, Chairman

                                             Respondent.

 

PROBABLE CAUSE

ORDER

         

 

The above-entitled matter came on for a probable cause hearing before Administrative Law Judge Allan W. Klein on November 3, 2004, by telephone.  The hearing was held pursuant to Minn. Stat. § 211B.34 to consider a complaint filed by Complainant on October 29, 2004.  On November 1, 2004, the undersigned ruled that the Complaint set forth a prima facie violation of Minn. Stat. § 211B.02.

Appearing on behalf of Complainant was Paul Kohls, Rider Bennett LLP, 333 South 7th Street, Suite 2000, Minneapolis, MN  55402.

Appearing on behalf of Respondent was Jay Benanav, Weinblatt & Gaylord PLC, 111 East Kellogg Boulevard, Suite 300, St. Paul, MN  55101.

Based upon the record and all of the proceedings in this matter, and for the reasons set forth in the Memorandum which is attached hereto, the Administrative Law Judge makes the following:

 

ORDER

          IT IS HEREBY ORDERED:

1.             That there is probable cause to believe that the Minnesota DFL Party violated Minn. Stat. § 211B.02.

2.             That this matter is referred to the Chief Administrative Law Judge for the scheduling of an evidentiary hearing.

 

 

 

Dated this

4th

day of

November

2004.

 

                   

S/ Allan W. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

 

 

MEMORANDUM

On or about October 20, 2004, the DFL party approved proofs of campaign literature for six House candidates.  Each of the six flyers was similar to the others, but not exactly the same.  Each of the six listed various groups which had endorsed the particular candidate.  Four of the six indicated that the candidate had been endorsed by the “Minnesota Farmers Union.”  But two of the six indicated that the candidate had been endorsed by the “Minnesota Farm Bureau.”  The two flyers, one for Richard Peterson and the other for Lyle Koenen, are the subject of this complaint because the Minnesota Farm Bureau did not endorse either of them.  They had been endorsed by the Minnesota Farmers Union, but not by the Minnesota Farm Bureau. 

All of the brochures were mailed on or about October 26.  There were roughly 5,000 mailed to Peterson’s district, and 10,000 mailed to Koenen’s district.  The DFL learned of the erroneous endorsement listing on October 27, and on that same day it faxed correction notices to five newspapers in Peterson’s district and five newspapers in Koenen’s district.  The next day, on October 28, the DFL mailed correction notices to all of the people who had been sent the erroneous flyers.  There were roughly 15,000 correction notices mailed on October 28, and they were mailed by a bulk mail with a “red tag” which the DFL believes causes them to be delivered as if they were first class mail.  The DFL asserts that each of the persons who received an erroneous flyer most likely also received a correction notice before the election.

Complainant asserts that the original flyer was patently false, and supports that with a letter from the president of the Minnesota Farm Bureau.  The letter states that the Farm Bureau has not and does not endorse candidates for political office, and that the statements in the DFL flyers are false.  Complainant points to the fact that four of the six brochures correctly identified the Minnesota Farmers Union, but that two of them erroneously identified the Minnesota Farm Bureau.  Complainant believes that this difference indicates that the incorrect endorsement was more than just a clerical error, and was instead a knowing violation of Minn. Stat. § 211B.02.

Respondent acknowledges the underlying facts of the Complaint, but argues that this was an inadvertent human error.  It points to the prompt and thorough corrective actions which it took to attempt to inform voters that the flyers were erroneous.  Respondent argues that the statute was not violated because the incorrect endorsement was not “knowingly” made.  It urges that the Complaint be dismissed.

Complainant has met its burden to demonstrate that there is probable cause to believe that the law was violated, and it ought to be permitted to attempt to demonstrate to a three-judge panel in an evidentiary hearing that, in fact, this was a knowing violation.

                                                                     

 

A.W.K.