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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 |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on September 5, 2006, before a panel of three Administrative Law
Judges: Richard C. Luis (Presiding
Judge), Bruce H. Johnson, and
Ken Moen,
Attorney at Law, 202 Riverside Building, 400 South Broadway,
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. Respondent Carla Nelson served one term (2002-2004)
as State Representative for District 30A.
She was defeated by Tina Liebling in the 2004 election and is
challenging Ms. Liebling for the same seat in the upcoming election.
2. The physical boundaries of Minnesota Legislative
District 30A are all within the City of
3. The Complainant is a
4. In late May or early June of 2006, Respondent
Nelson’s web site included a picture of her above the following heading: “State
Representative Carla Nelson.” Below the
heading was a press release that Respondent Nelson issued in December of 2005,
announcing her candidacy. The press
release stated in part 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
5. During the July 2006 “Rochesterfest parade,”
supporters of Ms. Nelson wore T-shirts with the following message: “Re-elect
Carla Nelson for State Representative.”[3]
6. Beginning in August of 2006, Respondents placed lawn
signs in the District 30A area that state: “Re-elect Carla Nelson Our State
Representative” and “Re-elect Carla Nelson For State Representative.”[4] These signs were left over from Ms. Nelson’s
unsuccessful bid for re-election in 2004.[5]
7. Respondent Nelson had some new lawn signs made in
2006 that said only “Carla Nelson for State Representative.” Nelson decided not to use the word “Re-elect”
on the new signs because she did not want to be confused with the incumbent
(Tina Liebling).[6]
8. The
Complainant filed this complaint against the Respondents with the Office of
Administrative Hearings on August 11, 2006.
The Complaint alleges that Respondents’ use of the word “re-elect” rendered
Nelson’s campaign material false in violation of Minn. Stat. § 211B.06.
9. 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.[7]
4. The Complainant has failed to demonstrate by clear and convincing evidence that Respondents violated Minn. Stat. § 211B.06.
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 13, 2006
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Presiding Administrative Law Judge |
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/s/ Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Administrative Law Judge |
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/s/ Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
MEMORANDUM
The Complainant alleges that Respondents’ use of the
word “re-elect” on Carla Nelson’s website, lawn signs, and T-shirts violated
Minn. Stat. § 211B.06. The Complainant
maintains that only incumbents may use the word “re-elect.” Complainant alleges further that the
Respondents either knew that use of the word “re-elect” rendered their campaign
material false or they used the word with reckless disregard as to whether it
was false.
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.[8] Based on this standard, the Complainant must show by clear and convincing evidence that the Respondents used the word “re-elect” knowing it was false or did so with reckless disregard for its truth or falsity. The test is subjective; the Complainant must come forward with sufficient evidence to prove 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.[9]
Reasonable people can disagree as to the propriety of using the word “re-elect” when the candidate has held the same office in the past but is not the incumbent.[10] The panel accordingly concludes that the evidence is insufficient to prove by clear and convincing evidence that Respondents either knew that use of the word “re-elect” rendered Ms. Nelson’s campaign material false or that they likely knew it was probably false. Therefore, the Complaint is this matter is dismissed.
R.C.L., B.H.J., K.D.S.
[1] Testimony of
Frederickson.
[2] Ex. 1;
Testimony of Frederickson and Nelson.
[3] Ex. 2.
[4] Exs. 4 and 5.
[5] Testimony of Nelson.
[6] Testimony of Nelson.
[7] Minn. Stat. § 211B.32, subd. 4.
[8] New York Times v. Sullivan, 376
[9] St. Amant v. Thompson, 390
[10] See Maloney
v.