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15-0320-17790-CV |
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
|
Terry
Sluss, Complainant, vs. MCCL State PAC and the
Senate Victory Fund, Respondents. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on March 26, 2007, before a panel of three Administrative Law
Judges: Beverly Jones Heydinger
(Presiding Judge), Bruce H. Johnson and William R. Johnson. The hearing record closed on
Jay Benanav, Attorney at
Law, Weinblatt & Gaylord, PLC,
James Bopp, Jr. and Barry
A. Bostrom, Attorneys at Law, Bopp, Coleson & Bostrom,
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 has failed to establish by clear and convincing evidence that the
Respondents violated Minn. Stat. § 211B.06.
Based upon the entire record, the panel makes the
following:
FINDINGS OF
FACT
1. Terry Sluss is a former Crow Wing County Commissioner
(3rd District). He was first
elected
2. Mr. Sluss is also a special education teacher and is currently
teaching at a high school in the
3. In 2006, Mr. Sluss was a candidate for the Minnesota
Senate in District 12.[3] Mr. Sluss
identifies himself as “pro-life,” and throughout his campaign he consistently stated
that he “supports life from conception to death by natural causes.”[4]
4. In January 2006, Mr. Sluss proposed that
5. Although his “pro-life” position put him at odds with
the DFL Party platform, Mr. Sluss won the DFL Party endorsement for Senate
District 12 in April 2006. His opponent
in the November general election was Paul Koering, the incumbent Republican
candidate.[6]
6. In an
7. In June and July of 2006, MCCL mailed a “Candidate
Questionnaire” to all candidates running for seats in the Minnesota
Legislature. The questionnaire contained
36 questions. Each question asked
candidates to indicate whether they would support specific “pro-life” legislative
proposals. For example, question 2 asked
candidates if they would vote for a law that would make abortions illegal,
except in cases of “forcible rape” or to prevent the death of the mother. Question 3 asked candidates if they would
vote for an amendment to the Minnesota Constitution that would “completely
reverse the Doe v. Gomez decision,
which created an absolute ‘right’ to abortion on demand,” and question 4 asked
candidates if they would vote for legislation that would prevent the use of
abortion as a means of birth control. The
transmittal letter to the candidates explained that the purpose of the
questionnaire was to provide citizens accurate information on candidates’
positions regarding “life issues.” The
letter also stated in bold print that endorsement by MCCL “is based on several
factors including response to this questionnaire.” [8]
8. Once MCCL received the completed questionnaires back from
the candidates, it compiled the responses on a spreadsheet as part of its voting
guide.[9] If a candidate did not respond to the
questionnaire, MCCL staff attempted to reach the candidate by telephone to ascertain
whether the candidate intended to respond.[10] MCCL noted the number of follow-up telephone
calls it made to non-responsive candidates and the candidates’ responses, if
any, on the spreadsheet.[11]
9. Laura Gese was the Legislative Associate for MCCL
from December of 2002, through October of 2006.
In 2006, Ms. Gese oversaw MCCL’s Candidate Questionnaire mailing and
coordinated the follow up calls to candidates who did not respond. According to Ms. Gese, the purpose of the
questionnaire was to obtain both information and commitments from the
candidates on issues important to MCCL.[12]
10. Mr. Sluss did
not fill out or submit a response to the MCCL questionnaire largely because MCCL
had already endorsed his opponent, Paul Koering, in the primary and had run
advertisements in the local newspapers in support of Koering’s campaign. In addition, Mr. Sluss generally does not
fill out surveys for special interest groups because he is sensitive to voters’
concerns about the influence certain lobbying groups have with elected
officials. Rather than make commitments
to special interest groups to vote a certain way on specific legislation or
proposals, Mr. Sluss’ general practice is to listen to all sides on an issue
and to not commit until the moment he actually casts his vote. In explaining this practice to a reporter for
the Brainerd Daily Dispatch, Mr.
Sluss stated: “I have always kept an open mind up until voting. I don’t want to be hog-tied.”[13]
11. Mr. Sluss did
fill out 2006 candidate surveys from various environmental groups and labor
union groups, including Education Minnesota, AFSME and AFL-CIO. Mr. Sluss responded to these surveys because
he feels strongly about labor and environmental issues.[14]
12. On or about
13. Any candidate
who refused to respond to the MCCL questionnaire was characterized in MCCL
campaign materials as having “refused to commit to any legal protection for
innocent unborn babies.” MCCL did not
use any other information apart from its questionnaire in determining whether
to characterize a candidate as not willing to commit to legal protection for
unborn babies.[16]
14. In October
2006, Jennifer Hoelscher of MCCL worked with Dan Miller of the Senate Victory
Fund on a series of mailings for targeted races that addressed candidates’
positions on abortion issues. One of the
races MCCL targeted was the Senate District 12 race.[17]
15. The Senate
Victory Fund is an organization that works to elect Republican State Senators. In the summer and fall of 2006, Mr. Miller
was the political director of the Senate Victory Fund’s field staff and the
manager of the Fund’s campaign efforts for the 2006 election. As part of his duties, Mr. Miller oversaw and
directed the efforts of the Fund in certain targeted races, including
coordinating the mailings of independent expenditures. Mr. Miller coordinated the mailings of MCCL’s
campaign material in the Senate District 12 race.[18]
16. In October
2006, MCCL staff, including Ms. Gese, designed and wrote the content for a
campaign postcard that was targeted to voters in Senate District 12.[19] The postcard compared the positions of candidates
Terry Sluss and Paul Koering on “life issues.”
A scanned copy of the campaign postcard appears below:
17. MCCL was
solely responsible for the preparation and content of the postcard. Dan Miller agreed, on behalf of the Senate
Victory Fund, to pay for the printing and postage of the campaign
postcard. The Senate Victory Fund paid
for its dissemination but neither Mr. Miller nor anyone else connected with the
Senate Victory Fund reviewed or approved it beforehand.[20]
18. The Senate
Victory Fund paid Wallace Carlson Company directly to print and prepare the
mailing, and the Fund paid the postmaster directly for postage to mail out the
literature.[21]
19. A disclaimer
at the bottom of the postcard stated that the postcard was prepared by MCCL
State PAC, and was paid for by Senate Victory Fund.[22]
20. On
21. In an article that appeared in the
22. In the same October 29th article,
Mr. Sluss explained that he did not fill out the MCCL questionnaire because
MCCL had already endorsed his opponent (Koering) and had taken out “big
advertisements” for Koering. Mr. Sluss
also stated that he often does not fill out surveys for special interest
groups, because he keeps an open mind up until voting and because voters have
serious concerns about the power of lobbyist groups in
23. The campaign
postcard was mailed to residents of Senate District 12 in early November 2006.
24. MCCL did not
research Mr. Sluss’ position or public statements on abortion or “pro-life”
issues prior to creating and disseminating the campaign postcard. It based the statement that Mr. Sluss
“refused to commit to any legal protection for innocent unborn babies” solely
on Mr. Sluss’ decision not to fill out MCCL’s Candidate Questionnaire.[26]
25. Mr. Sluss
received the Respondents’ campaign postcard at his home on or about
26. In the
27. Mr. Sluss
received at least one telephone call from a resident of Senate District 12 who
said that he voted for Mr. Sluss’ opponent based on the MCCL campaign postcard.[28]
28. Mr. Sluss
filed this complaint with the Office of Administrative Hearings on
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. Campaign material is defined to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, …”[29] The postcard[30] prepared by MCCL and paid for by the Senate Victory Fund is campaign material within the meaning of that statute.
3. Minn. Stat. §
211B.06, subd. 1, provides, in part: “A
person is guilty of a gross misdemeanor who intentionally participates in the
preparation, [or] 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.”
4. 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.[31]
5. The Complainant has failed to demonstrate that the Respondents violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove that the statement at issue, “[Terry Sluss] refused to commit to any legal protection for innocent unborn babies,” is false and that Respondents knew it was false or subjectively knew that it was probably false.[32]
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:
1. That the Complaint in this matter is DISMISSED.
2. That the Respondents’ request for attorney’s fees is
denied.
Dated:
April 19, 2007
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Presiding Administrative Law Judge |
|
/s/ Bruce H. Johnson |
|
BRUCE H. JOHNSON |
|
Administrative Law Judge |
|
/s/ William R. Johnson |
|
WILLIAM R. JOHNSON |
|
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 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.[33] Based on this standard, the Complainant must show by clear and convincing evidence that the statement is false and that the Respondent either published the statement knowing it was false or published with reckless disregard for its truth or falsity. In Riley v. Jankowski,[34] 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 unfavorable deductions or
inferences derived from a candidate’s conduct.[35] It does not reach criticism that is merely
unfair or unjust. It does reach false
statements of specific facts.[36]
The statement at issue in
this matter is, “Terry Sluss refused to commit to any legal protection for
innocent unborn babies.” The Complainant
argues that the statement is false because he has supported “pro-life”
legislation and proposals while in public office, and he has consistently
stated throughout his campaign that he “supports life from conception to death
by natural causes.” The Complainant
maintains that he has never refused to commit to legal protection for the
unborn during his 10 years as a Crow Wing County Commissioner or while a
candidate for Minnesota Senate District 12. Instead, he points out that he proposed
measures as a
Under cross-examination, the Complainant conceded that all of the questions in MCCL’s Candidate Questionnaire asked for “commitments” from candidates to support various “pro-life” related bills and legislation. The Complainant also conceded that it is reasonable for MCCL to ask candidates’ their positions on issues MCCL views as important. The Complainant explained, however, that he chose not to fill out the questionnaire in part because it is his practice to listen to all sides of an issue and to not make a commitment until it is time to vote. As he stated in an October 2006 interview with the Brainerd Dispatch, he likes to keep an open mind on issues and he does not like to be “hog-tied.”[37] Despite his practice of not wanting to commit to legislation until its time to vote, the Complainant maintains that it was unfair of the Respondents to publish the statement at issue because of his prior support of “pro-life” measures and his public statements.
Based on the record presented, the panel concludes that the statement, “[Terry Sluss] refused to commit to any legal protection for innocent unborn babies,” is not false. The Complainant chose to not fill out MCCL’s questionnaire, which asked for commitments from candidates to support specific pro-life legislation. It is reasonable to characterize his decision not to fill out the questionnaire as a “refusal.” An MCCL intern called the Complainant and asked him whether he was going to respond to the questionnaire and the Complainant replied that he was not going to respond because he does not believe in filling out PAC surveys. Further, because the questionnaire asked for commitments from candidates to support “pro-life” legislative proposals, it is fair to characterize the Complainant’s refusal to respond to the questionnaire as a refusal to commit to legal protection for the unborn. By his own admission, it is the practice of the Complainant to refuse to commit to legislation until it is time to vote. And his statement to a newspaper reporter that he was “inclined to support” certain “pro-life” legislation cannot fairly be characterized as a commitment. Given this, MCCL’s statement that the Complainant refused to commit to legal protection for innocent unborn babies is not false.
By declining to fill out the Candidate Questionnaire, the Complainant chose not to tell MCCL his position on various “pro-life” issues. Yet, he asserts that MCCL should have made an effort to research and find out his position on these issues based on his prior public service and statements made throughout the campaign. The Complainant asserts that his pro-life stance and the efforts he has made to protect the unborn were readily available “through an easy search of the public record.” Based on Fine v. Bernstein,[38] the Complainant maintains that the Respondents’ decision to prepare and disseminate the postcard “without checking easily accessible facts from the public record, demonstrates reckless disregard and actual malice.”[39]
In Fine v. Bernstein,[40] a panel of Administrative Law Judges found that statements in a Minneapolis Park Board candidate’s flyer were false and that the Respondent knew they were false or communicated them with reckless disregard as to whether they were false. In particular, the panel found the statement that the Complainant did not support more funding for the removal of diseased trees to be a false statement of fact. The record established that the Complainant did support increased funding in 2004 and 2005. These were verifiable facts in the Park Board records and the Respondent testified that he had reviewed the Park Board records before preparing and disseminating the flyer. The OAH panel concluded that the statement was factually false and that the Respondent knew it was false. The Court of Appeals agreed that the statement was an assertion of fact that the Respondent knew was false.
Unlike Fine, the Complainant in this matter has failed to show by clear and convincing evidence that the statement at issue is false. Instead, the record established that the Complainant did refuse MCCL’s request to commit to legal protection for the unborn. And the Complainant stated that it is his general practice not to commit to any proposals or legislation prior to voting. The fact that the Complainant has consistently identified himself as “pro-life” and has advocated in the past for measures to protect the unborn does not render the statement a false factual assertion. In addition, contrary to the Complainant’s claim, the reckless disregard standard under Minnesota Statutes § 211B.06 does not obligate the Respondents to investigate or research the Complainant’s position prior to publishing.[41] The Respondents are only prohibited from intentionally preparing or disseminating false campaign material. However, because the panel finds that the statement at issue is not false, it is not necessary to analyze whether the Respondents published the statement with knowledge or “reckless disregard” of the statement’s falsity.
In general, the Complainant
seems to be arguing that the statement at issue is unfair because it is based
solely on his decision not to respond to the questionnaire and it does not
credit his pro-life position or public statements. The
panel agrees that the Respondents’ characterization of the Complainant’s
position is unfair and misleading, but unfair and misleading statements are not
prohibited by the Fair Campaign Practices Act.
Minn. Stat. § 211B.06 is directed against factually false statements;
not unfavorable deductions or
inferences derived from a candidate’s conduct.[42]
To this point,
the Minnesota Supreme Court’s discussion in Kennedy
v. Voss,[44] is instructive. In that case, an incumbent
This case is similar. Although the Complainant had little opportunity to respond directly to the Respondents’ postcard, there were numerous opportunities throughout the campaign for him to communicate his “pro-life” views. It was for the voters of Senate District 12 to decide whether the Respondents’ characterization of the Complainant’s position was fair. Because the statement is not false, the Complainant has failed to establish by clear and convincing evidence that the Respondents violated Minn. Stat. § 211B.06. The Complaint is therefore dismissed.
The Respondents have brought a motion for attorneys’ fees. Pursuant to Minn. Stat. § 211B.36, subd. 3, the assigned panel may order a Complainant to pay the Respondents’ reasonable attorney’s fees and costs of the Office of Administrative Hearings if the judge or panel determines the complaint was frivolous. A frivolous claim is one that is without any reasonable basis in law or equity and could not be supported by a good faith argument for a modification or reversal of existing law.[48] Here the complaint was found to state a prima facie violation of Minn. Stat. § 211B.06. The fact that the Complainant was not able to meet his burden of proving the case by clear and convincing evidence does not render his complaint frivolous. Therefore, Respondents’ request for attorney’s fees is denied.
B.J.H., B.H.J.,
W.R.J.