12-0320-17816-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Terrance C. Holter,  

                                           Complainant,

vs.

 

John Melbye,

                                             Respondent.

 

ORDER OF DISMISSAL

On January 23, 2007, Terrance C. Holter filed a Complaint with the Office of Administrative Hearings alleging that John Melbye violated Minnesota Statutes
§§ 211B.06 (false campaign material) and 211B.13 (bribery, treating or solicitation).  By Order dated January 25, 2007, the Administrative Law Judge dismissed without prejudice the allegation in the Complaint that the Respondent violated Minnesota Statutes § 211B.06 by falsely claiming in campaign material to have had “thousands of hours of courtroom experience.”  The Judge ordered that if the Complainant submitted evidence of the campaign material at issue, he could file a subsequent complaint without paying an additional filing fee.  The Judge dismissed the remaining allegations.    

On February 7, 2007, the Complainant filed a second complaint alleging that the Respondent violated Minn. Stat. § 211B.06 by stating on his campaign website that he has “thousands of hours of courtroom experience.”  The Complainant attached a copy of website to the Complaint.  

After reviewing the Complaint and the attachment, the Administrative Law Judge has determined that the Complaint does not state prima facie violation of Minnesota Statutes § 211B.06.  Therefore, Complaint is dismissed.

Based upon the Complaint and the supporting filings and for the reasons set out in the attached Memorandum,

IT IS ORDERED:

That the Complaint filed by Terrance Holter against John Melbye is DISMISSED.

 

 

Dated:  February 12th, 2007

 

                   

                                                  /s/ Steve M. Mihalchick ___

STEVE M. MIHALCHICK

                                                                      Administrative Law Judge

 

NOTICE

Under Minn. Stat. § 211B.36, subd. 5 this order is the final decision in this matter and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat. § § 14.63 to 14.69.

MEMORANDUM

The Complainant, Terrance C. Holter, served as a Beltrami County District Court Judge since he was appointed in 1980.  He ran for re-election in the November 7, 2006, general election and was defeated by his former law clerk, John Melbye.  The Complaint alleges that Mr. Melbye violated Minn. Stat. § 211B.06 by stating on his campaign website that he has “thousands of hours of courtroom experience.”
The Complainant alleges that this is a false statement and that in disseminating this statement the Respondent violated Minn. Stat. § 211B.06. 

Minnesota Statutes § 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, . . . 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.

“Campaign material” is defined 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.”[1]  The Respondent’s campaign website meets the definition of “campaign material.”  On his website, the Respondent posted information about himself, which included the following paragraph:

For nearly five years, I have served as judicial law clerk in the 9th Judicial District conducting legal research, analysis, and writing.  As a part of two separate judicial units, I have thousands of hours in the courtroom and in chambers.  I have gained proficiency in many areas of the law.   

The Respondent served as a Beltrami County District Court law clerk for approximately five years.[2]  The Complainant maintained in his initial complaint that law clerks in Beltrami County District Court spend only a limited amount of time in the courtroom.  According to the Complainant, based on typical court calendars and the rotating schedules of the three judges chambered in the Bemidji courthouse, the Respondent spent at most only 400 hours in the courtroom during his time as a law clerk.  The Complainant maintains that even in the most generous light, the Respondent spent no where near the “thousands of hours” in the courtroom that he claims on his campaign website. 

In Kennedy v. Voss,[3] the Minnesota Supreme Court observed that the statute is directed against false statements of fact.[4]  Expressions of opinion, rhetoric, and figurative language are generally protected speech if, in context, the reader would understand that the statement is not a representation of fact.[5]  The burden of proving the falsity of a factual statement cannot be met by showing only that the statement is not literally true in every detail.  If the statement is true in substance, inaccuracies of expression or detail are immaterial.[6]  A statement is substantially accurate if its “gist” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.  Where there is no dispute as to the underlying facts, the question whether a statement is substantially accurate is one of law.[7] 

Contrary to the Complainant’s allegation, the Respondent did not state on his website that he had “thousands of hours of courtroom experience.”  He stated that he has “thousands of hours in the courtroom and in chambers.”[8]  The Administrative Law Judge concludes that this statement is not a verifiably false statement of fact.  The Respondent worked as a law clerk in Beltrami County District Court for approximately five years.  Given the typical duties of a law clerk, it is likely he did spend a great deal of time in the courtroom and in chambers.  Although the Complainant alleges that the Respondent spent at most only 400 hours in the courtroom, he failed to allege any facts as to the amount of time the Respondent spent in chambers.  The Administrative Law Judge notes, however, that it is not uncommon for matters of judicial business (such as settlement discussions, motion arguments, and other conferences with litigants) to take place in chambers with the law clerk present.  In addition, depending on where it is located, a law clerk’s office may be considered part of a court’s chambers.  Thus, even if the Respondent did not spend thousands of hours in the courtroom, the Complainant has failed to allege any facts that would support finding that the Respondent’s claim that he spent thousands of hours in the courtroom and in chambers is false.        

The Administrative Law Judge concludes that the Complainant has failed to make a prima facie showing that the Respondent violated Minn. Stat. § 211B.06 in the preparation and dissemination of the campaign material at issue.  The Complaint is dismissed.

S.M.M.

 


[1] Minn. Stat. § 211B.01, subd. 2.

[2] The Respondent was employed as the Complainant’s law clerk for approximately 4 years.  Prior to that, he clerked for the late Beltrami District Court Judge James Preece for about one year.

[3] 304 N.W.2d 299 (Minn. 1981).

[4] Id. at 300.

[5] Jadwin v. Minneapolis Star and Tribune Co., 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); Greenbelt Coop. Publishing Assoc. v. Bresler, 398 U.S. 6, 13-14 (1970).  See also Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 (1990); Diesen v. Hessburg, 455 N.W.2d 446, 451 (Minn. 1990); Hunter v. Hartman, 545 N.W.2d 699, 706 (Minn. App. 1996);

[6]Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d at 441.

[7] Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d at 441.

[8] Emphasis added.