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15-0320-17530-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Melissa Hortman,
Complainant, vs. Republican Party of Respondent. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on
Alan
Weinblatt, Attorney at Law, Weinblatt & Gaylord, PLC,
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 Respondent violate Minn. Stat. §
211B.06 by intentionally participating in the preparation or dissemination of
false campaign material that Respondent knew was false or communicated to
others with reckless disregard as to whether it was false?
A majority of the panel concludes that
the Complainant failed to establish that Respondent violated Minn. Stat. §
211B.06, and therefore the Complaint against it is dismissed.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. Melissa Hortman is a member of the Minnesota State
House of Representatives representing District 47B. Ms. Hortman was first elected in 2004. She is
running for re-election in the
2. Minnesota House District 47B covers portions of
Hennepin and
3. A main theme of Ms. Hortman’s 2004 campaign was the
need to lower property taxes for North Metro homeowners while continuing to
fully fund schools. Several pieces of
campaign literature distributed to residents of District 47B on behalf of Ms.
Hortman’s 2004 campaign discussed the need to reduce the property tax burden on
“North Metro homeowners.”[1]
4. School districts have the option to seek additional
revenue by going to the voters and having the voters approve an operating
referendum or levy. These levy amounts
are provided through local property taxes.
The amount of referendum revenue that a school district can raise is
capped by state law. However, the state does provide equalization aid to help
school districts of low or moderate property tax wealth reduce the levy impact
of the referendums.[2]
5. On or about April 4, 2005, Representative Hortman
proposed, as Chief Author, the adoption of House File 2310 (HF 2310).[3]
6. As written, HF 2310 would have increased the
referendum equalization aid amount from $500 to $800 per pupil. This would have increased referendum equalization
aid statewide by about $18 million, and lowered property tax levies by the same
amount (about $18 million statewide). HF
2310 would have also increased the maximum amount of referendum revenue that a school
district could have by raising the referendum cap from 18.6% to 28% of the
formula allowance.[4]
With an increase in the referendum cap,
property taxes could rise if the voters in the school district approved an
increased levy.[5]
7. In 2005, ten school districts already had approved
property tax levies that were above the 18.6% referendum caps. For those districts, HF 2310 would have
allowed school boards to increase property taxes up to the amount previously approved
by the voters.[6] For all other school districts, HF 2310 would
not have automatically raised property taxes absent action by each school
district’s board to seek a referendum and approval of the levy by voters.[7]
8. Had HF 2310 been enacted as written, the Department
of Education estimated that its net effect would have increased statewide
property taxes by about $16 million ($34 million in increased levies minus $18 million
in additional equalization aid).[8]
9. Had HF 2310 been enacted as written, the section
concerning equalization aid would have decreased property taxes for property
owners in District 47B, Representative Hortman’s legislative district.[9] The Anoka-Hennepin school district would have
received equalization aid resulting in property tax reductions of about $3
million for fiscal year 2007.[10] The Osseo school district would have received equalization
aid resulting in property tax reductions of about $680,000 for fiscal year 2007.[11]
10. Ms. Hortman
did not anticipate an excess levy referendum in her district, and in fact there
was none. Thus, the property taxes
of taxpayers in the Anoka-Hennepin and Osseo school districts would not have
been affected by the provision in HF 2310 increasing the referendum caps from
18.6% to 28%. Representative Hortman
included that provision in her bill in order to attract support for her bill
from legislators for whom increasing the referendum caps was an important
constituent issue.[12]
11. HF 2310 did not receive a hearing and was not
enacted. However, the 2005 Legislature
enacted an omnibus education bill (HF 141) that did increase the equalization
aid amount in fiscal year 2007 from $500 per pupil to $600 per pupil, and then
to $700 per pupil for fiscal years 2008 and later. The enacted bill also increased the
referendum cap from 18.6% to 26%.[13] The Department of Education estimated that
the overall effect of the bill would have raised property taxes statewide by
approximately $29 million.[14]
12. During the
2005 legislative session, Representative Erik Paulsen, the Republican Majority
Leader in the Minnesota House of Representatives, introduced a bill that would
have had the same effect as HF 2310.[15]
13. On or about
September 18, 2006, the Republican Party of Minnesota distributed a campaign flyer
to residents of House District 47B with the heading: “Two years ago, we said
yes to Melissa Hortman . . . but Melissa Hortman has been saying NO to
us ever since.” In the fourth paragraph
underneath the heading, the flyer states:
Even though she promised to “reduce homeowner property taxes”[16] Melissa Hortman failed to introduce even one bill to do so.[17]
At the bottom of the flyer is the following statement: “IT’S TIME TO SAY NO TO MELISSA HORTMAN. SHE’S NOT ON OUR SIDE!”[18]
14. Gregg Peppin wrote the campaign flyer at
issue (Ex. 1) and conducted the research on which it is based. Mr. Peppin is the executive assistant to Minnesota
House Majority Leader Erik Paulson. Prior
to this position, he worked as the assistant to Speaker of the House Steve
Sviggum. When the legislature is not is
session, Mr. Peppin takes a leave from that position and works as the Executive
Director for the House Republican Campaign Committee (HRCC). The HRCC is the campaign arm of the House
Republican Caucus.[19]
15. In preparing
the written copy for the campaign flyer, Mr. Peppin researched the bills
introduced by Representative Hortman, her voting record, public statements,
press releases, 2004 campaign material, web site, and news items. Mr. Peppin reviewed HF 2310 in preparing the
copy, and he understood that the effect of the bill as written would have been
to decrease property taxes in the Anoka-Hennepin and Osseo school districts in
47B, but would likely have increased property taxes statewide. He then drafted the written material for the
campaign flyer and e-mailed it to Kevin Watterson, who designed the flyer. Mr. Watterson is also employed by HRCC.[20]
16. Once Mr.
Watterson had finished designing the campaign flyer, he sent a copy of the
flyer to Mr. Peppin for his approval.
Mr. Peppin reviewed and approved the flyer and sent it on Benjamin
Golnik, the Executive Director of the Republican Party of Minnesota for his
approval.[21]
17. Mr. Golnik
received a copy of the final version of the campaign flyer in an email from Mr.
Peppin. Before approving the flyer, Mr. Golnik
“fact-checked” it by reviewing data from the Department of Education and the
Governor’s recommended budget.[22] The flyer was also reviewed by the Republican
Party of Minnesota’s communications director and research director. Following his review, Mr. Golnik approved the
campaign flyer for distribution.[23]
18. The
Republican Party of Minnesota paid for the cost of printing and mailing the
flyers. A disclaimer on the flyer states
that it was paid for by the Republican Party of Minnesota.[24] The flyers were mailed only to voters in
District 47B. Approximately 8,000 flyers
were mailed.[25]
19. The
Complainant filed this Complaint with the Office of Administrative Hearings on September
22, 2006.
20. 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.[26]
4. The Complainant has failed to demonstrate that the Respondent violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove by clear and convincing evidence that the statement that Representative Hortman “failed to introduce even one bill [to reduce homeowner property taxes]” is false and that Respondent knew it was false or subjectively knew that it was probably false.[27]
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:
October 16, 2006
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Presiding Administrative Law Judge |
|
/s/ Bruce H. Johnson |
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BRUCE H. JOHNSON |
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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.[28] 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. In Riley v. Jankowski,[29] the Minnesota Court of Appeals interpreted the “reckless disregard” standard stated in Minn. Stat. § 211B.06, subd. 1, as requiring clear and convincing evidence that Respondent made the statement while subjectively believing that the statement was probably false.
As interpreted by
the Minnesota Supreme Court, the statute is directed against false statements
of fact. It is not intended to prevent
criticism of candidates for office or to prevent deductions and arguments from
their official conduct that are unfavorable to them. It does not reach criticism which is merely
unfair or unjust. It does reach false
statements of specific facts.[30]
Here, the record established that Representative Hortman was the Chief Author of a bill (HF 2310) that, if enacted as written, would have raised property taxes statewide but would have lowered them for her legislative district. Because the campaign flyer was sent only to voters in District 47B and uses terms such as “we” and “us,” it implies that Representative Hortman did not introduce any bill as Chief Author that would have lowered property taxes for residents of District 47B, when in fact HF 2310 would have lowered property taxes for the district’s residents. As such, the statement in the flyer is intentionally misleading. Although intentionally misleading, it is true that Representative Hortman was not the Chief Author of a bill that would have the overall effect of lowering property taxes. Hence, the statement is not clearly false.
The evidence
established that the proposed increase in caps for excess levy referenda would
not have affected the taxpayers within the two school districts in House
District 47B. Representative Hortman
testified that the only reason she had included the provision increasing the
caps in her bill was to attract the support of legislators whose constituents
favored a cap increase. In other words,
the campaign material in question criticizes Representative Hortman for doing
what her constituents elected her to do—that is, engage in the process of
legislative compromise in ways that further the interests of her own
constituents. What seem particularly
insincere here is that the Republican Party suggests that Representative
Hortman should not be re-elected for engaging in the same process of political
compromise that its own House majority leader Paulsen engaged in during the
same legislative session.
Representative
Hortman also claims that she did not “promise” to reduce property taxes. Her campaign literature does not state a
“promise” to do so. However, a fair
reading of the cited campaign literature shows that lowering property taxes was
one part of her plan for economic development in her district. Whether that constitutes a “promise” is an
opinion, not a statement of fact.
It is clear from
Mr. Peppin’s testimony that he understood the effect the statement that Ms.
Hortman did not introduce even one bill to reduce homeowner property taxes
would have on the voters and the likelihood that readers were receiving
incomplete information. However, it is
not a violation to include only the partial picture. Sadly, the practice is common in campaign literature
and not confined to one political party.
Telling half the truth is particularly galling here because Mr. Peppin
claimed that his purpose in creating the brochure was not to defeat
Representative Hortman, but to “educate” the voters. As an effort to educate, it deserves a
failing grade.
It was clearly the Respondent’s intent to imply that Representative Hortman has done nothing to help lower property taxes for homeowners in her district, when in fact she authored a bill that would have reduced property taxes in her district. However, Minn. Stat. § 211B.06 is directed against false statements of fact and not false implications. The majority of the panel concludes that the evidence is insufficient to prove by clear and convincing evidence that the statement at issue in the campaign flyer is false. Accordingly, the Complaint is dismissed.
B.J.H., B.H.J.
DISSENT
I respectfully dissent from
the conclusion of the majority of the panel that the statement “Even though she
promised to ‘reduce homeowner property taxes’ Melissa Hortman failed to
introduce even one bill to do so” is not a false statement. This flyer was prepared specifically for the
residents of House District 47B. It was
sent only to residents of House District 47B.
To the extent Hortman made any promise to work toward a reduction of
property taxes, it was made to the residents of House District 47B. The language in the flyer (“We said yes to
Melissa Hortman”) further reinforces the message that Melissa Hortman failed to
introduce any legislation to reduce property taxes for residents of 47B, which
is what I believe the average voter in 47B would understand the flyer to
say. This is a false statement.[31]
If
the statement is false, there is no question that the Respondent knew it was false
and communicated it anyway. Mr. Peppin
testified that he knew the effect of HF 2310 was to “pay for a reduction in
property taxes in her district by increasing property taxes statewide.” The Republican Party of Minnesota accepted Peppin’s
copy for the flyer, paid for it to be printed, and distributed 8,000 copies
into House District 47B. I would find
that the Respondent violated Minn. Stat. section 211B.06 and would assess a
penalty based on the violation.
|
/s/ Kathleen D. Sheehy by BJH |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
[1] Testimony of
Hortman; Ex. 8
[2] Testimony of
Strom and Melcher; Ex. 5 (
[3] Exs. 2 and 3.
[4] Testimony of Strom: Ex. 4.
[5] Ex. 5.
[6] The total
amount of property tax increase for those 10 school districts would have been
$7.6 million.
[7] Testimony of
Strom.
[8] Testimony of
Strom and Melcher; Ex. 6.
[9] Testimony of
Strom, Hortman, and Peppin.
[10] Testimony of
Strom; Ex. 4.
[11] Testimony of Strom; Ex. 11.
[12] Testimony of
Representative Hortman.
[13] Testimony of
Strom; Ex. 4.
[14] Ex. 5.
[15] Testimony of
Peppin.
[16] Footnote 5 in
Ex. 1 citing “Hortman 2004 campaign literature.” (Emphasis in original).
[17] Footnote 6 in
Ex. 1 stating “As Chief Author. See www.house.mn/members/47B.”
[18] Ex. 1 (Emphasis
in original).
[19] Testimony of
Peppin.
[20] Testimony of
Peppin and Golnik.
[21] Testimony of
Peppin.
[22] Exs. 5 and 6.
[23] Testimony of
Golnik and Peppin.
[24] Ex. 1.
[25] Testimony of
Golnik.
[26] Minn. Stat. § 211B.32, subd. 4.
[27] See Riley v. Jankowski, No. A051125 (
[28] New York Times v. Sullivan, 376
[29] 713
N.W.2d 379 (
[30] Hawley v. Wallace, 137
[31] Jadwin v. Minneapolis Star and Tribune,
390 N.W.2d 437, 441 (Minn. App. 1986), citing
Old Dominion Branch No. 496, National
Assoc. of Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974) (statement
that must be proved false is not necessarily the literal phrase published but
rather what a reasonable reader would have understood the author to have said). See
also Milkovich v. Lorain Journal Co., 497