|
|
11-0320-19823-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Brian Melendez,
Complainant, vs. Employee Freedom Action
Committee, Minnesotans for Employee Freedom Steering Committee, and King Banaian,
Respondents. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION; AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Alan Weinblatt, Attorney at Law, Weinblatt
& Gaylord, PLC, 111 East Kellogg Blvd, Suite 300, St. Paul, MN 55101 (for Complainant); Neal T. Buethe,
Briggs and Morgan, 2200 IDS Center, 80 South 8th Street,
Minneapolis, MN 55402-2157 (for Respondents Employee Freedom Action Committee
and Minnesotans for Employee Freedom Steering Committee); and King Banaian,
P.O. Box 270622, St. Paul, MN 55127.
On August 1, 2008, Brian Melendez filed a Complaint with the Office of
Administrative Hearings alleging the Respondents violated Minnesota Statutes
§ 211B.06 by preparing and disseminating false campaign material.[1] After reviewing the Complaint and attached
documents, the undersigned Administrative Law Judge has determined that the Complaint
sets forth a prima facie violation of § 211B.06 with respect to the three named
Respondents.
THEREFORE, IT IS ORDERED AND NOTICE IS GIVEN that this matter is scheduled for a probable cause hearing to be held by telephone before the undersigned Administrative Law Judge at 3:00 p.m. on Friday August 8, 2008. The hearing will be held by call-in telephone conference. You must call: 1-888-394-4822 at that time. Follow the directions and enter the code “19823” when asked for the meeting number. The probable cause hearing will be conducted pursuant to Minn. Stat. § 211B.34. Information about the probable cause proceedings and copies of state statutes may be found online at www.oah.state.mn.us and www.revisor.leg.state.mn.us.
At the probable cause hearing, all parties have the right to be represented by legal counsel, by themselves, or by a person of their choice if not otherwise prohibited as the unauthorized practice of law. In addition, the parties have the right to submit evidence, affidavits, documentation and argument for consideration by the Administrative Law Judge. Parties should provide to the Administrative Law Judge all evidence bearing on the case, with copies to the opposing party, before the telephone conference takes place. Documents may be faxed to Judge Neilson at 651-361-7936.
At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss the complaint based on a determination that the complaint is frivolous, or that there is no probable cause to believe that the violation of law alleged in the complaint has occurred; or (2) determine that there is probable cause to believe that the violation of law alleged in the complaint has occurred and refer the case to the Chief Administrative Law Judge for the scheduling of an evidentiary hearing. Evidentiary hearings are conducted pursuant to Minn. Stat. § 211B.35. If the Administrative Law Judge dismisses the complaint, the complainant has the right to seek reconsideration of the decision on the record by the Chief Administrative Law Judge pursuant to Minn. Stat. § 211B.34, subd. 3.
A failure by a Respondent to
participate and appear by telephone at this probable cause hearing may result
in a finding that the Respondent is in default, that the Complainant’s allegations
contained in the Complaint may be accepted as true, and that the Presiding
Administrative Law Judge may dispose of the Complaint according to Minn. Stat.
§ 211B.35, subd. 2.
Any party
who needs an accommodation for a disability in order to participate in this
hearing process may request one.
Examples of reasonable accommodations include wheelchair accessibility,
an interpreter, or Braille or large-print materials. If any party requires an interpreter, the
Administrative Law Judge must be promptly notified. To
arrange an accommodation, contact the Office of Administrative Hearings at
Dated: August 6, 2008
|
/s/ Barbara L. Neilson |
|
BARBARA L. NEILSON |
|
Administrative Law Judge 651-361-7845 |
The Complaint concerns the 2008 Minnesota U.S. Senate race. The Complaint alleges that a campaign newspaper advertisement produced and distributed by the Respondents contained false campaign material with respect to candidate Al Franken. The ad is directed at Mr. Franken’s support of proposed federal legislation known as the Employee Free Choice Act (EFCA). Specifically, the advertisement states:
Al Franken . . . supports a federal bill that would force
The Complaint maintains that this statement is false. According to the Complaint, the EFCA does not
eliminate the right to a secret ballot.
Rather, it provides a process for “streamlining union certification”
without amending the secret ballot provision.
The Complaint asserts that the secret ballot provision would remain
intact if EFCA is enacted into law.
Therefore, the Complaint claims that the statement in the ad that Al
Franken supports a bill that would force
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.
In order to be found to have violated this section, a person must intentionally participate in the preparation, dissemination or broadcast 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.[2] Based on this standard, the Complainant has the burden at the hearing to show by clear and convincing evidence that the Respondents prepared or disseminated the advertisement knowing that 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 the Respondents “in fact entertained serious doubts” as to the truth of the ad or acted “with a high degree of awareness” of its probable falsity.[3]
For purposes of a prima facie determination, the Complainant must detail the factual basis to support a claim that the violation of law has occurred.[4] “Prima facie” means “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.”[5] “Prima facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.”[6] In determining whether a campaign complaint sets forth a prima facie violation of the statute, the Administrative Law Judge is required to credit as true all of the facts that are alleged in the Complaint, provided that those facts are not patently false or inherently incredible.
The Complainant initially filed a complaint alleging this
violation on
July 24, 2008. By Order dated July 29,
2008, that complaint was dismissed without prejudice because it failed to
allege with any specificity why the statement at issue is factually false, and
it failed to allege sufficient facts or provide supporting documentation from
which knowledge or reckless disregard of the falsity of the statement on the
part of the persons who prepared or disseminated the material would be
implied. The Complainant was permitted
to revise and file a subsequent complaint, which he did on August 1, 2008,
resulting in the current proceeding.
After reviewing the Complaint and its attachments, the Administrative Law Judge concludes that the Complaint sufficiently alleges that the identified statement is false and that the federal bill at issue does not eliminate workers’ rights to a private ballot vote. The Complaint further sufficiently alleges that Respondents participated in the design and/or dissemination of the advertisement knowing the statement was false or with reckless disregard as to whether the statements were false.
According to the newspaper advertisement attached to the Complaint, the advertisement was paid for by “Minnesotans for Employee Freedom.” The advertisement directs readers to the website of the Employee Freedom Action Committee. The Complaint states that this group is the national organization of which Minnesotans for Employee Freedom is a local incarnation. The Complaint also attaches a letter from King Banaian to DFL Chair Brian Melendez in which he identifies himself as the Chairman of Minnesotans for Employee Freedom Steering Committee. The letter is written on “Employee Freedom Action Committee” letterhead. In the letter, Mr. Banaian acknowledges the Minnesota DFL Party’s criticism of “our advertising” related to the Employee Free Choice Act, and Mr. Banaian challenges Mr. Melendez to a debate on the issue.
The Administrative Law Judge concludes that the Complaint sufficiently alleges a prima facie violation of Minn. Stat. § 211B.06 as to the three Respondents. This matter will proceed to a probable cause hearing.
B.L.N.
[1]
The Complaint also cited a violation of Minn. Stat. § 211B.04, but it failed to
discuss the basis for this claim or put forward any facts to support the
claim. The ALJ assumes the citation to
Section 211B.04 was an error. However,
if the Complainant intended to allege a violation of Minn. Stat. § 211B.04, the
ALJ finds the Complaint fails to set forth a prima facie violation of this
section and this claim is dismissed. In
addition, this provision has been found to be unconstitutional. See, Riley
v. Jankowski, 713 N.W.2d 379, 401 (Minn. App. 2006), rev. denied (
[2] New York Times v. Sullivan, 376
[3] St. Amant v. Thompson, 390
[4]
[5] Black’s Law Dictionary 1228 (8th ed. 2004).
[6]