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15-0320-19991-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Lori Grivna, Complainant, vs. Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Lori Grivna, [Street Address
Redacted], Shoreview, MN 55126; and Alan Weinblatt, Weinblatt & Gaylord,
PLC, 111 East Kellogg Boulevard, Suite 300, St. Paul, MN 55101.
On October 20, 2008, Lori Grivna filed a Campaign Complaint with the Office of Administrative Hearings alleging that the Minnesota DFL Party violated Minnesota Statutes § 211B.06 by preparing and disseminating false campaign material. This matter was originally assigned to Administrative Law Judge Barbara L. Neilson. However, due to a scheduling conflict, it was reassigned to Administrative Law Judge Beverly Jones Heydinger on October 21, 2008. After reviewing the Complaint and attached exhibits, the undersigned Administrative Law Judge has determined that the Complaint sets forth a prima facie violations of Minn. Stat. § 211B.06.
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 10:00 a.m. on Tuesday, October 28, 2008. The hearing will be held by call-in telephone conference. You must call: 1-888-831-8967 at that time. When the system asks for your numeric pass code, enter “19991” on your phone and you will be connected to the conference. The probable cause hearing will be conducted pursuant to Minnesota Statutes § 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 that choice is 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 emailed to Judge Heydinger at Beverly.Heydinger@state.mn.us or faxed to 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 Minnesota Statutes § 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 Minnesota Statutes § 211B.34, subdivision 3.
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: October 22, 2008
/s/
Beverly Jones Heydinger
BEVERLY JONES HEYDINGER
Administrative Law Judge
Complainant Lori Grivna is the Republican-endorsed candidate for Minnesota House District 50B. Ms. Grivna has also served on the Mounds View School Board. Ms. Grivna alleges that the Minnesota DFL Party prepared and distributed to residents of the district false campaign material about her in an attempt to discredit her and defeat her in the upcoming November 4, 2008, election.
At issue is a postcard/flyer the Minnesota DFL Party mailed to residents of District 50B. The postcard/flyer shows a picture of a padlocked gate, and states, in part, as follows:
CLOSED:
The Lori Grivna Record on Our Schools
When Lori Grivna served on the Mounds View School Board, the Board increased property tax levies three straight years.[1]
But after spending our money on renovating
Legislative leaders from her own party tried to take action to stop the closings[3] . . . but today, those schools are closed. The investment of our tax dollars can never be recovered.
The footnotes are highlighted in a box on the left-hand side of the flyer under the heading: “CHECK THE FACTS:”
The Complainant alleges that the statements in the flyer that
the schools are closed are false because the school buildings are not closed
and are in fact being used for educational purposes. The Complainant suggests
that the word “schools” in the statement, “But after spending our money on
renovating Pike Lake and Snail Lake Elementary schools, Grivna voted to close
them!,” refers to the school buildings
since the sentence is addressing the money spent on renovating the buildings. In addition, the accompanying photo depicts a
padlock that further suggests a closed building. According to the Complaint, the buildings are
currently occupied and are being used to provide early childhood, special
education, English language learner, adult, and school readiness services. In addition, the Complainant asserts that District
administrative operations occupy 28% of one of the building sites. While the Complainant admits that as a member
of the Mounds View School Board she voted to close two elementary school programs (consolidating programs from
eight buildings to six to address the projected downturn in enrollment), she
and other members of the Board did not vote to close the buildings. The Complainant states that students living
in
The Complainant also argues that the statement, “The investment of our tax dollars can never be recovered,” is false. The Complainant maintains that the 2003 renovations to the buildings addressed indoor air quality improvements, safe entrances, and deferred maintenance, and the 2005 voter-approved bond referendum addressed other physical needs of these public buildings beyond education programming. Because these public buildings are still occupied and being used to provide educational programming and house administrative operations, the investment of tax dollars to maintain and renovate these buildings is and can be recovered. In support of her Complaint, the Complainant has attached District information regarding the current use of the two buildings at issue, and budgetary information for the 2003-2005 school years.[4]
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.
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.[5] “Prima facie” means “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.”[6] “Prima facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.”[7] 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 Administrative Law Judge concludes that the Complainant has alleged sufficient facts and provided sufficient evidence to support finding that the identified statements are false and that the Minnesota DFL Party prepared and disseminated the material with knowledge of their falsity or with reckless disregard of whether the statements are false in violation of Minn. Stat. § 211B.06. Therefore, these allegations will proceed to a probable cause hearing as scheduled by this Order.
B.J.H.