|
|
3-0320-17388-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Steve Drazkowski,
Complainant, vs. Daniel Richard Nelson and
Daniel Miller, Respondents. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on
Steve Drazkowski (Complainant),
Matthew W. Haapoja, Attorney at Law, Trimble &
Associates, Ltd.,
NOTICE
This is the final decision in this
case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek
judicial review as provided in
STATEMENT OF ISSUES
Did Respondents violate Minn. Stat. §
211B.06 by intentionally participating in the preparation or dissemination of
false campaign material that Respondents knew was false or communicated to
others with reckless disregard as to whether it was false?
The panel concludes that the
Complainant failed to establish that Respondents violated Minn. Stat. § 211B.06,
and therefore the Complaint against them is dismissed.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. The Complainant is a candidate for Minnesota Senate
District 28.
2. Minnesota Senate District 28 covers most of Goodhue, Wabasha
and northeast
3. Steve Murphy, a Democrat, has held the Senate seat
since 1992 and is running for re-election this year.
4. In October of 2005, the Complainant was arrested and
charged with fifth degree domestic assault for allegedly physically assaulting
his 14-year-old daughter. The criminal
complaint alleged that the Complainant grabbed his daughter by the shirt below
the neck and lifted her off the ground during an argument about housework,
leaving two red marks on her upper chest.[1]
5. On January 13, 2006, a jury acquitted the Complainant
of the assault charges after a three-day trial.[2]
6. At all relevant times, Respondent Dan Miller has been
employed as an Assistant Research Director for the Minnesota Senate Republican
Caucus. Senator Day is the Minority
Leader of the Minnesota Senate.
Respondent Miller is part of the Senate Republican Caucus’s “leadership
team” and he provides direction to the Caucus’s researchers and other
employees.[3]
7. Respondent
Dan Nelson is employed as a researcher with the Senate Republican Caucus. Prior to this position, he worked for the
House Republican Campaign Committee as a field staff member in the
8. Employees of the Senate Republican Caucus routinely
work on candidates’ campaigns on their personal time. Many take leaves of absence from their Senate
Caucus positions when the legislature is no longer in session, and work for the
Senate Republican Campaign Committee, doing literature drops and other campaign
activities on behalf of Republican candidates.[4]
9. Both
Respondents Nelson and Miller are interested in politics and follow campaigns
and elections. Both have volunteered on
behalf of Republican candidates and both were interested in the Senate District
28 race. Respondent Miller has also
written many campaign pieces for Republican candidates and he attended about
six endorsing conventions in 2006.[5]
10. In the fall
of 2005, Respondent Miller was aware of and concerned about the criminal
charges against the Complainant. He had read
and heard media reports concerning the charges against the Complainant.
11. Sometime in
late January of 2006, the Complainant called Respondent Dan Miller and
discussed his campaign and recent acquittal with him.[6]
12. Respondent Miller remained concerned that the
publicity surrounding the Complainant’s legal issues would adversely affect his
ability to be elected. Miller viewed
Senate District 28 to be an important seat, and it was a great concern to
Miller that Democrats could use the negative information about the Complainant
against him were the Complainant to be the Republican candidate on the ticket
in November.[7]
13. Meg Walch and Steve Wilson were also candidates
for Senate District 28. Senator Dick Day
had encouraged Ms. Walch to run for the seat.
All three candidates sought the Republican Party endorsement.[8]
14. In February
of 2006, Respondent Dan Miller began volunteering as an advisor to Ms. Walch’s campaign.
15. In the end of March or early April 2006,
Respondent Miller wrote (but did not design) a campaign flyer on behalf of Meg
Walch. One side of the flyer showed a
picture of Ms. Walch under the statement: “A Strong Candidate Who Can Win in
November.”[9] The other side of the flyer listed Ms.
Walch’s credentials as a “proven conservative leader” and included the
statement: “Meg Walch is the Republican candidate who can win in
November.” In preparation for mailing
the piece, Respondent Miller obtained a mailing list of the endorsing
convention delegates and alternates from the State Republican Party.[10] The Walch campaign planned to mail this piece
to Republican delegates and alternates shortly before the endorsing convention.
16. In the same
general time frame, Respondents Nelson and Miller discussed the Complainant’s
candidacy. Respondents were interested in discovering what potentially damaging
public information was available that could be used by Democrats or other
challengers against the Complainant.[11] Respondents believed the best candidate for
Senate District 28 was Meg Walch.[12]
17. Respondent
Nelson suggested to Respondent Miller that he could conduct some “opposition
research” on the Complainant by going to Wabasha and seeing what information he
could obtain about the Complainant from court records and the
18. On April 18,
2006, Respondent Nelson took the day off work and, along with co-workers Amanda
Hutchings and Tim Eng, went to Wabasha to obtain a copy of the Complainant’s
booking photo (mug shot) and court records concerning the assault charges. Respondent Nelson obtained a copy of
Complainant’s booking photo from the Wabasha County Sheriff’s Office for a $10
copying fee.[14] He then went to the
19. Amanda
Hutchings worked as a media writer for the Senate Republican Caucus in April of
2006.[16]
20. Tim Eng
worked as a researcher for the Senate Republican Caucus in April of 2006. His direct supervisor was Dan Miller.[17]
21. On or about
April 19, 2006, Respondent Nelson gave Respondent Miller the information he had
obtained on the Complainant, including the copy of Complainant’s booking photo and
copies of documents from the criminal file.[18]
22. Once
Respondent Miller had obtained the information about the Complainant from
Respondent Nelson, he decided to create a flyer critical of the Complainant
that would be mailed out to Republican delegates and alternates shortly before the
endorsing convention.[19]
23. Respondent
Miller created the flyer with the dual intent of injuring or defeating the
Complainant’s candidacy and promoting Meg Walch’s candidacy. Miller believed that the race for the
Republican Party’s endorsement for the Senate District 28 seat was between the
Complainant and Meg Walch, and he felt that the flyer would help Ms. Walch’s
candidacy by hurting the Complainant’s candidacy.[20]
24. A scanned
copy of one side of the campaign flyer created by Respondent Miller appears below:
25. Respondent Miller created the flyer using his
home computer. The flyer features
graphics of the Wabasha County Sheriff’s Office badge and handcuffs along with
quotes attributed to court documents, wcco.com, and a liberal political blog
called the “northerndebater.blogspot.com.”
The flyer also features a headline that Respondent Miller attributed to
the Winona Daily News.
26. The flyer was
folded in half and sealed with tape for mailing. One half of the other side of the flyer was
used for the recipient’s mailing address.
The remaining half of the other side of the flyer featured the booking
photo of the Complainant under the sentence: “We need a strong candidate who
can win in November.”[21]
27. Respondent
Miller attributed the headline, “Senate Candidate Abuses Daughter, Still
Running,” to the “Winon[a] Daily News, Saturday, October 22, 2005.”[22]
28. No such
headline ever ran in the Winona Daily
News. Instead, the quoted headline
is from a posting on the northerndebater.blogspot site. The blog ran this headline above a portion of
an article that did appear in the Winona
Daily News on October 22, 2005. The
blog posting appeared as follows:
29. The blog
posting contained a hyperlink that connected readers to the actual Winona Daily News article.
30. The actual
headline that ran above the October 22, 2005, article about the Complainant in
the Winona Daily News was: “State
Senate candidate charged with assault.”[23]
31. The northerndebater.blogspot is a political
blog that tends to oppose Republicans. Respondent
Miller assumed postings on this blog concerning Republican candidates would be
“spun.”[24]
32. After
creating the flyer on his home computer, Respondent Miller made copies and
mailed them to the approximately 250 addresses of delegates and alternates in Senate
District 28, using the same mailing list he had obtained from the State
Republican Party for Ms. Walch’s campaign.
Miller personally paid the costs of copying the flyer because he wanted
the “right candidate” on the ticket in November and he wanted the Republicans
to win the Senate District 28 seat in November.[25]
33. Respondent
Miller did not indicate on the flyer who had created or paid for the flyer. Instead, he disseminated the flyer
anonymously, because he believed that if the delegates knew that he was behind
the flyer it might make people think the Senate Republican Caucus was involved
and he did not want “the message to be confused with the messenger.”[26]
34. The piece
that Respondent Miller wrote for Meg Walch was mailed by Ms. Walch’s campaign on
April 25, 2006.[27]
35. Respondent
Miller mailed the campaign flyer about the Complainant on
36. It was Respondent Miller’s hope that the
Complainant would drop out of the race as a result of the campaign flyer. Miller is not proud of having made and
disseminated the flyer but believes it was important to do in order for the
Republican Party to win the Senate District 28 seat in November.[29]
37. Respondent
Nelson did not know that Miller had made the flyer, and Nelson did not
participate in creating or disseminating the flyer.[30] He first saw the flyer after it was
disseminated.[31]
38. Meg Walch was
not aware that Respondent Miller had created the flyer. When Ms. Walch saw the flyer, she thought it was
horrible.[32]
39. Respondents
Nelson and Miller attended the Republican endorsing convention on April 29,
2006, along with other Senate Republican Caucus employees. Respondent Miller discussed his concerns
about the Complainant with about 10 people, including delegates.[33]
40. Neither the
Complainant nor Ms. Walch received the Republican endorsement for the Senate
District 28 seat at the endorsing convention.
Instead, Steve Wilson won the endorsement. Ms. Walch signed a pledge that she would
support the endorsed candidate and she is no longer running for the seat. The Complainant is still a candidate for the
seat and is running in the upcoming primary.
41. Respondent
Miller testified at the hearing that, when asked by Minnesota Representative
and Speaker of the House Steve Sviggum in June of 2006, whether he had anything
to do with the flyer, Miller denied that he had anything to do with it. Respondent Miller testified that he lied to
Sviggum about his involvement because he did not want to bring Sviggum into the
controversy.[34]
42. The
Complainant filed this complaint against Respondent Daniel Nelson with the
Office of Administrative Hearings on July 3, 2006.
43. At the start of the hearing in this matter,
counsel for Respondent Nelson moved to substitute Dan Miller for Dan Nelson. The panel allowed Mr. Miller to be added as an
additional Respondent.
44. When the
legislature adjourned this past session, Respondent Dan Miller took a leave of
absence from his job with the Senate Republican Caucus and began working as the
political director for the Senate Republican Campaign Committee.[35]
Based upon the foregoing Findings of Fact, the panel makes the
following:
CONCLUSIONS
1. Minn. Stat. § 211B.35 authorizes the panel of
Administrative Law Judges to consider this matter.
2. Minn. Stat. §
211B.06, subd. 1, provides, in part: “A
person is guilty of a gross misdemeanor who intentionally participates in the
preparation, dissemination … of … campaign material with respect to the
personal or political character or acts of a candidate … that is designed or
tends to elect, injure, promote, or defeat a candidate for nomination or
election to a public office …, that is false, and that the person knows is
false or communicates to others with reckless disregard of whether it is false.”
3. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[36]
4. The Complainant has failed to demonstrate by clear and convincing evidence that Respondent Nelson violated Minn. Stat. § 211B.06 because Nelson was not involved in the preparation or dissemination of the campaign flyer.
5. The Complainant has failed to demonstrate that Respondent Miller violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove by clear and convincing evidence that Miller knew the attribution of the headline to the Winona Daily News was false or that he likely knew it was probably false.
Based upon the record herein, and for
the reasons stated in the following Memorandum, the panel of Administrative Law
Judges makes the following:
ORDER
IT IS ORDERED:
That the
Complaint in this matter is DISMISSED.
Dated:
September 11, 2006
|
/s/ Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Presiding Administrative Law Judge |
|
/s/ Steve M. Mihalchick |
|
STEVE M. MIHALCHICK |
|
Administrative Law Judge |
|
/s/ Richard C. Luis |
|
RICHARD C. LUIS |
|
Administrative Law Judge |
MEMORANDUM
Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated this section, a person must intentionally participate in the preparation or dissemination of false campaign material that the person knows is false or communicates with reckless disregard of whether it is false.
The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard from New York Times v. Sullivan.[37] Based on this standard, the Complainant must show by clear and convincing evidence that the Respondent either published the challenged statement knowing the statement was false or published with reckless disregard for its truth or falsity. The test is subjective; the Complainant must come forward with sufficient evidence to provide that the Respondent “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[38]
As the U.S. Supreme Court has noted, there is not one infallible definition of “reckless disregard.” Inevitably, its outer limits must be marked through case-by-case adjudication. A respondent cannot automatically ensure a favorable decision by testifying that he published with a belief that the statements were true.[39]
Here, the record reflects that Respondent Nelson merely retrieved factually true information from court records and provided it to Miller. He did not otherwise participate in the preparation of the flyer at issue.
Respondent Miller prepared and distributed the flyer, but the evidence is insufficient to prove by clear and convincing evidence that he knew the attribution of the headline to the Winona Daily News was false or that he likely knew it was probably false.
K.D.S., R.C.L., S.M.M.
Administrative Law Judge Steve M.
Mihalchick, Concurring
I
concur in the result, but believe there is another, more basic, reason the
Complaint should be dismissed. Nothing
in the language of Minn. Stat. § 211B.06, subd. 1, makes it a crime to prepare
or disseminate false material in connection with a political party’s endorsing
convention.
Minn.
Stat. § 211B.06, subd. 1, makes it a crime to participate knowingly in the
preparation or dissemination of false campaign material that is designed or
tends to elect, injure, promote, or defeat a candidate for nomination or
election to a public office. Consistent
with the foregoing statute, Minn. Stat. § 211B.01, subd. 2, defines “Campaign
material” as any literature, publication, or material that is disseminated for
the purpose of influencing voting at a primary or other election, except for
news items or editorial comments by the news media.
The
term “election” is not defined in Minn. Stat. § 211B. It is defined in Minn. Stat. § 10A.01, subd.
15, as “a primary, special primary, general, or special election.” Similar definitions appear throughout
Minnesota Statutes. See, e.g., Minn. Stat. §§ 200.02, 204C.04,
204D.28, and 205.01. None extend the
term to include political party endorsements.
Candidates
are nominated at primary elections and elected at general elections. They are neither nominated nor elected at
party endorsing conventions; rather, they are endorsed by their parties for
nomination and election.
It
is true that influencing a political party’s endorsement will likely ultimately
influence a primary or general election.
But that is subsequent consequence and not a sufficient reason to
interpret Minn. Stat. § 211B.06 broadly to extend its coverage beyond its clear
language. The statute is a criminal
statute that must be narrowly construed and must clearly and expressly define
the conduct it prohibits.
Moreover,
there is nothing in Minn. Stat. ch. 211B to indicate that the Legislature
intended to become involved in the internal workings of political parties. Using this case as an example, Miller
prepared the flyer and disseminated it for the purpose of influencing the
delegates at the Senate District 28 endorsing convention. Those delegates no doubt had the opportunity
at the convention to inform themselves about the contents of the flyer and
Complainant had the opportunity to respond to the flyer at the convention. There may be some need to shield the mass of
voters at large from the unfair advantage of knowingly false campaign material,
but there is no such need where the recipients of the possibly false material
are knowledgeable, active political party members who are meeting specifically
to consider the qualifications, presentations, and responses of individuals
seeking the endorsements of that party.
That process provides for a full exposition of ideas, information, and
opinions. Regulation of the content of
that process is not needed and was not intended.
There
is no evidence the flyer was distributed by Miller after the endorsing
convention. As Miller testified, the
flyer was prepared and distributed by him to influence the party endorsing
convention. Thus, there is no violation
of Minn. Stat. § 211B.06.
S. M. M.