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7-0320-17447-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Mark Frederickson, Complainant, vs. Carla Nelson and Nelson Volunteer Committee, Respondents. |
PROBABLE CAUSE ORDER |
The above-entitled matter came on for a probable cause hearing as provided by Minn. Stat. § 211B.34, before Administrative Law Judge Richard C. Luis on August 17, 2006, to consider a complaint filed by Mark Frederickson on August 11, 2006. The probable cause hearing was conducted by telephone conference call.
Ken
Moen, Attorney at Law, 202 Riverside Building, 400 South Broadway,
Based on the record and all the proceedings in this matter, and for the reasons stated in the attached Memorandum, which is incorporated herein, the Administrative Law Judge finds that there is probable cause to believe that the Respondents violated Minnesota Statute § 211B.06 by using the word “reelect” on Ms. Nelson’s campaign lawn signs, web page, and press releases.
IT IS ORDERED:
1. There is probable cause to believe that Respondents violated Minnesota Statute § 211B.06 by using the word “reelect” on Ms. Nelson’s campaign lawn signs, web page, and press releases.
2. This matter is referred to the Chief Administrative Law Judge for assignment to a panel of three Administrative Law Judges for an evidentiary hearing pursuant to Minnesota Statute § 211B.35.
Dated: August 22, 2006 /s/ Richard C. Luis
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RICHARD C. LUIS
Administrative Law Judge
In 2002, Carla
Nelson was elected to the office of State Representative for District 30A. The physical boundaries of Minnesota
Legislative District 30A are all within the City of
The Complainant attached to the Complaint
photographs of lawn signs that state: “Re-Elect Carla Nelson Our State
Representative” and “Re-Elect Carla Nelson For State Representative.” The Complainant also attached photographs of
participants at the “Rochesterfest” parade wearing T-shirts with the message:
“Re-Elect Carla Nelson For State Representative.” In addition, the Complainant alleges that as
of August 9, 2006, Ms. Nelson’s campaign website included links to similar
photographs of lawn signs with the words “Re-Elect Carla Nelson” and “Our State
Representative” on them. Finally, the
Complainant alleges that Ms. Nelson’s web site included a press release, which
stated as follows:
CARLA NELSON TO SEEK
REELECTION TO
U of M-Rochester, genomics partnership,
health care, and job creation will be top priorities
“I am running for reelection as State Representative to provide
The Complaint alleges that since
Ms. Nelson is not the incumbent, her use of the term “reelect” in relation to
her candidacy for the House District 30A seat in the current election is a
false statement within the meaning of Minn. Stat. § 211B.06, subd. 1.
Ms. Nelson admits that she approved the
use of the word “reelect” on her campaign lawn signs, web site and press
releases. She maintains, however, that
since she held the same seat before, use of the word “reelect” does not render
her campaign material false. She relies
on a definition of the term “reelect” to mean “to elect again,” which is the
premise of two earlier decisions from Administrative Law Judges dismissing
complaints filed over use of the term. Ms.
Nelson also points out that she identified herself clearly as the “former State
Representative” in her press release.
Minn. Stat. § 211B.06, subd. 1, prohibits
intentional participation:
… [i]n the preparation,
dissemination, or broadcast of paid political advertising or campaign material
with respect to the personal or political character or acts of a candidate, or
with respect to the effect of a ballot question, that is designed or tends to
elect, injure, promote, or defeat a candidate for nomination or election to a
public office or to promote or defeat a ballot question, that is false, and
that the person knows is false or communicates to others with reckless
disregard of whether it is false.
As stated in the Prima Facie Determination Order, the term “reelect” appears only once in the Fair Campaign Practices Act, at Minn. Stat. § 211B.03, which prohibits, in the event of redistricting, the use of the term “reelect” unless the candidate is the incumbent of that office and the office represents any part of the new district. Although Section 211B.03 is directed to situations involving redistricting, its language implies that only incumbents can be reelected.
In addition, the New Oxford American Dictionary (2005) defines “reelect” as “to elect someone to a further term of office.” That same source also defines “further,” when used as an adjective, as “…. 2. additional to what already exists.” These definitions add support to the view, adopted at this point by the Administrative Law Judge, that use of the term “reelect” is proper only for incumbent office holders. He is persuaded that this definition is more precise and applicable to these circumstances than “to elect again.”
The purpose of a probable cause hearing is to determine whether there are sufficient facts in the record to believe that a violation of law has occurred as alleged in the complaint.[1] The material facts in this case are not in dispute. Respondents placed the word “reelect” on Ms. Nelson’s campaign material and Ms. Nelson is not the incumbent. Accordingly, there is probable cause to believe a violation of section 211B.06 has occurred. This conclusion is bolstered especially by the campaign signs that say “Re-Elect Carla Nelson Our State Representative.” The message in such signs is a representation of current incumbency, which is clearly false, and the Respondents knew then and know now that Carla Nelson has not been in office during this campaign.
This matter will be referred to the Chief Administrative Law Judge for assignment to a panel of three Administrative Law Judges for an evidentiary hearing. The parties indicated at the probable cause hearing that they were willing to forgo appearing at an evidentiary hearing and allow the panel to decide this case based on the record created at the probable cause hearing[2] and written submissions. A notice of evidentiary hearing will be issued, after which either party still can decide if they want an evidentiary hearing. If either party states a request for an evidentiary hearing, then one will be convened. In either case, the record made already will be incorporated into the evidentiary hearing record.
At the evidentiary hearing, the Complainant has the burden of proving by clear and convincing evidence that the campaign material at issue is false, and that the Respondents knew it was false or communicated it to others with reckless disregard of whether it was false. That standard, stated in Minn. Stat. § 211B.06, subd. 1, has been interpreted recently by the Minnesota Court of Appeals in Riley v. Jankowski,[3] which held that “reckless disregard,” as used in the statute, requires clear and convincing evidence that Respondents made the statement while subjectively believing that the statement was probably false.
R. C. L.
[1] Minn. Stat. § 211B.34, subd. 2.
[2] The probable cause hearing record includes the tape recording of the hearing, and Complainant’s three exhibits: 1. photographs of Respondents’ lawn signs, which were attached to the Complaint; 2. photographs of parade participants wearing T-shirts with the message “Reelect Carla Nelson,” which was attached to the Complaint; and 3. the four-paged Complaint, which was filed on August 11, 2006.
[3]
713 N.W.2d 379 (