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15-0320-19992-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Carolyn
Jackson, Complainant, vs. Keith
Downey, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on November 19, 2008, before a panel of three Administrative Law
Judges: Beverly Jones Heydinger (Presiding
Judge), Steve M. Mihalchick and John A. Ellefson. The OAH hearing record closed on December 3,
2008, with the filing of the parties’ written memoranda.
Christian
Sande, Attorney at Law,
Reid LeBeau II,
Attorney at Law, Lockridge, Grindal, Nauen, P.L.L.P.,
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 Keith Downey
violate Minnesota Statute § 211B.06 with respect to two statements in campaign
material he disseminated prior to the
November 2008 election?
The panel concludes that the
Complainant failed to establish that the Respondent violated Minn. Stat. § 211B.06,
and therefore the Complaint is dismissed.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. Keith Downey was
the Republican-endorsed candidate for Minnesota House District 41A[1]
in the November 2008 election. One of his opponents was incumbent State Representative
Ron Erhardt who, after losing the Republican endorsement, ran as an Independent.[2] The Complainant, Carolyn Jackson, was the
co-chair of Representative Erhardt’s re-election campaign.
2. Prior to the election, Mr. Downey disseminated a
letter to certain residents of House District 41A that attached a one-page flyer
entitled “Candidate Comparison.” A copy
of the Candidate Comparison appears below:
3. Mr. Downey prepared both the letter and the Candidate
Comparison.[3] The Candidate Comparison lists 14 issues and
purports to compare Mr. Downey’s position on the issues to Mr. Erhardt’s and
those of the House DFL. At the bottom of
the Candidate Comparison it states that Mr. Erhardt’s positions are based on
“actual votes, bill authorship, and published information.”[4]
4. In creating the Candidate Comparison flyer, Mr.
Downey researched the status of Minnesota House bills on-line and relied on
Minnesota House Republican summaries of bills and amendments.[5]
5. During September and October of 2008, Mr. Downey
disseminated the letter and Candidate Comparison flyer to approximately 5,000
households identified as likely Republican voters in House District 41A.[6]
6. Representative Erhardt did not disseminate any
campaign material of his own or place any advertisements in local newspapers to
counter or respond to the claims made in Mr. Downey’s letter and Candidate
Comparison flyer.[7]
Gas Tax
statement
7. The sixth issue statement on the Candidate Comparison
reads as follows: “Increase gas tax by up to 8.5 cents/gallon with no
offsetting decrease in other taxes.
(HF2800: tax, Olson Amendment to HF3201; offset 2008).”[8] Mr. Downey is identified as opposing this
statement, and Mr. Erhardt is identified as supporting it.
8. House File 2800 increased the state gas tax to raise transportation
funds for road and bridge repair and for public transit projects.[9] Representative Erhardt voted in favor of
House File 2800 for final passage.
9. Included in HF 2800 is a $25 lower-income motor fuels
tax credit. Under this provision,
individuals meeting certain income requirements are allowed a $25 credit
against the tax imposed under the bill.[10]
10. According to the
legislature’s fiscal note for HF 2800, the gas tax will generate approximately
$150 million per year in revenue for the state of
11. On February
21, 2008, Representative Erhardt voted against an amendment to HF 2800 proposed
by Representative Olson that would have implemented individual tax rate
reductions to offset the gas tax increases in the bill.[12] Representative Erhardt also voted against an
amendment to HF 2800 proposed by Representative Kohls that would have required
that any funds made available to local government from the gas-tax increase be
offset by a corresponding reduction in local property taxes.[13] Neither of these amendments passed.
Positive
Alternatives Act
12. The ninth
statement on the Candidate Comparison sheet states: “Support the Positive
Alternatives Act to provide material needs for women who otherwise would not choose
to deliver their baby. (HF952, SF917,
2005).” Mr. Downey is identified as
supporting the Positive Alternatives Act and Mr. Erhardt is identified as not
supporting the Act.[14]
13. The Positive
Alternatives Act was passed into law in 2005.
In general, it provides grants related to “positive abortion
alternatives.”[15] The Minnesota House version of the bill was
HF 952. The companion bill in the Minnesota
Senate was SF 917. In the end, SF 917 was
substituted for HF 952 and was passed into law.
14. On April 18,
2005, Representative Erhardt voted against passing HF 952 out of the
15. On May 17,
2005, Representative Erhardt voted against SF 917 when it reached the House
floor and was substituted for HF 952.[17] The House passed the substituted bill, with
amendments, and sent it back to the Senate.[18]
16. The Senate
refused to concur with the House amendments and a conference committee was
appointed to resolve the differences between the two versions of SF 917. When SF 917 returned to the House on May 23,
2005, as amended by conference, Representative Erhardt voted in favor of SF 917
for final passage.[19]
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, …”[20] The Campaign Comparison prepared and disseminated by Respondent Downey is campaign material within the meaning of that statute.[21]
3. Minn. Stat. §
211B.06, subd. 1, provides, in part:
A person is guilty of a gross
misdemeanor who intentionally participates in the preparation, dissemination,
or broadcast 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.[22]
5. The Complainant has failed to demonstrate that the Respondent violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove that the statements at issue are false and that the Respondent knew they were false or communicated them with a reckless disregard as to whether they were false.[23]
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 Respondent’s request for attorney’s fees is
DENIED.
Dated: December
8, 2008
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Presiding Administrative
Law Judge |
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/s/ Steve M.
Mihalchick |
|
STEVE M. MIHALCHICK |
|
Administrative
Law Judge |
|
/s/ John A. Ellefson |
|
JOHN A. ELLEFSON |
|
Administrative
Law Judge |
MEMORANDUM
The
Complainant maintains that the statements at issue in the Candidate Comparison
flyer are false and that Respondent Downey knew they were false or disseminated
them with a high degree of awareness as to their probable falsity.
Contentions of the Parties
There
is no dispute that Representative Erhardt voted in favor of HF 2800 and that HF
2800 increased the state gas tax. The Complainant
argues, however, that the statement that Representative Erhardt supports
increasing the gas tax “with no offsetting decrease in other taxes” is false
because there was an offsetting motor fuels tax credit for lower income
taxpayers in HF 2800. Because the tax
credit contained in this bill would necessarily result in a decrease in income
tax for those persons qualifying for the credit, the Complainant maintains the Respondent’s
use of the absolute “no” in the phrase “with no offsetting decrease in
other taxes” renders the statement factually false. The Complainant contends that a tax credit is
a type of offset and points to the 1979 edition of Black’s Law Dictionary in
support of this argument.[24]
The
Respondent argues that the gas tax statement in his Candidate Comparison flyer
is literally true. The Respondent
asserts that the word “offset” is defined as “balancing” or “to serve as a
counter balance for.”[25] According to the Respondent, a reasonable
person would understand the word “offset” to mean a “canceling out” and
maintains that the limited tax credit provided for in HF 2800 is not an offsetting decrease in other taxes. The Respondent points out that the 2004
edition of Black’s Law Dictionary defines “tax credit” as a reduction in the
tax liability as computed[26]
– not an offset. Thus, while the motor
fuels tax credit for low income taxpayers does serve to reduce these taxpayers’
overall tax liability, affected taxpayers and others did not see a corresponding
decrease in other taxes in an amount equal to the gas tax increase. Moreover, the Respondent asserts that the
fact that Representative Erhardt voted against both the Olson and Kohls
amendments, which would have specifically required offsetting the gas tax with decreases
in other taxes, renders the statement substantially true if not literally true
in every detail.
With
respect to the second statement that Representative Erhardt did not support the
Positives Alternatives Act, the Complainant argues that this statement is false
because Representative Erhardt did vote in favor of the Act for final passage. The Complainant maintains that unlike the
situation in Anderson v. Faust,[27]
where a candidate claimed his opponent “voted against” a certain bill even
though the opponent voted in favor of the final version of that bill, here, Mr.
Downey stated that Representative Erhardt did not “support” the Act. According to the Complainant, the natural
meaning of the word “support” would include voting in favor of final passage of
the bill.
The
Respondent counters that it is entirely reasonable for Mr. Downey to infer that
Representative Erhardt did not support the Positive Alternatives Act based on
his several preliminary votes against the bill.
According to Mr. Downey, Representative Erhardt took every opportunity
he had to try and kill the bill before the final vote. Given this conduct, the Respondent maintains
it is reasonable to deduce that Representative Erhardt did not support the Act.
Applicable Standards
Minn.
Stat. § 211B.06 prohibits a person from intentionally participating in the
preparation, dissemination, or broadcast of campaign material with respect to
the personal or political character or acts of a candidate that is designed or
tends to injure or defeat a candidate, and which the person knows is false or
communicates to others 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
applicable to defamation cases involving public officials from New York Times v. Sullivan.[28] Based upon this standard, the Complainant has
the burden at the hearing to prove by clear and convincing evidence that the
Respondent either published the statements knowing the statements were false,
or that he “in fact entertained serious doubts” as to the truth of the
publication or acted “with a high degree of awareness” of its probable falsity.[29] In addition, 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.[30]
To be found to have violated section 211B.06, therefore, two requirements must be met: (1) a person must intentionally participate in the preparation or dissemination of false campaign material; and (2) the person preparing or disseminating the material must know that the item is false, or act with reckless disregard as to whether it is 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.[31]
Legal
Analysis
The panel concludes that the first sentence at issue concerning the gas tax is not a false statement of fact. The panel is persuaded that the ordinary meaning of the word “offset” is to serve as a counterbalance or to compensate for something else. In financial terms, “offset” typically means accounting entries that cancel each other out. With these definitions in mind, HF 2800 does increase the gas tax by up to 8.5 cents a gallon without including an offsetting decrease in other taxes. The lower-income gas tax credit contained in HF 2800 is a limited credit against the tax imposed by the bill and not an offsetting decrease in other taxes. Even if the panel were to find the phrase “offsetting decrease” sufficiently ambiguous so as to render the statement not literally true in every detail, the statement is true in substance, particularly given the fact that Representative Erhardt voted against specific amendments to HF 2800, which would have required offsetting decreases in other taxes. For all of these reasons the panel finds the Complainant failed to show by clear and convincing evidence that the statement is false. Moreover, the Complainant failed to put forward any evidence to suggest that Respondent disseminated the statement knowing the statement was false or with a high degree of awareness of its probable falsity. Instead, the Respondent testified the he chose his words in this statement carefully to convey the message that Representative Erhardt did not vote for a decrease in other taxes while voting to raise the gas tax.
With respect to the second sentence, the panel finds the Minnesota Supreme Court’s decision in Kennedy v. Voss[32] to be controlling. In that case, an incumbent county commissioner complained that his opponent disseminated literature that unfairly characterized his support for programs serving the elderly. The incumbent initially voted in favor of the county budget, which funded a variety of programs including those serving the elderly. Later he voted against entire budget because he disagreed with one particular appropriation. After that vote, his opponent circulated literature asserting that the incumbent “is not a supporter of programs for the elderly.”[33] The incumbent maintained that there were other votes, not cited in the challenger’s literature, which made the incumbent’s support of the referenced programs clear. The Minnesota Supreme Court held that inferences based on the true fact of the incumbent’s “no” vote, as to whether he supported particular programs, did not come within the purview of the statute.[34] The Court concluded that the public is adequately protected from extreme or illogical inferences drawn from facts by the campaign process itself.[35]
In this case, the panel finds the Complainant’s argument
that a reasonable reader would interpret the word “support” to mean a vote in
favor of the final bill to be unavailing.
Like Kennedy, the Respondent in
this matter is permitted to infer from Representative Erhardt’s procedural votes
against the Positive Alternatives Act that Representative Erhardt did not support the Act. Section 211B.06 is directed against factually
false statements; not unfavorable
deductions or inferences derived from a candidate’s conduct.[36]
Moreover, Representative Erhardt had the opportunity to respond directly to Mr. Downey’s flyer and to communicate his positions to the voters prior to the November election, but for whatever reason he chose not to do so. Mr. Downey disseminated the flyer in two mailings; one is September and one in October. It was for the voters of House District 41A to decide whether the Respondent’s characterization of Representative Erhardt’s positions was fair. Because the statements are not false, the Complainant has failed to establish by clear and convincing evidence that the Respondent violated Minn. Stat. § 211B.06. The Complaint is therefore dismissed.
The Respondent has brought a motion for attorneys’ fees. Pursuant to Minn. Stat. § 211B.36, subd. 3, the assigned panel may order a Complainant to pay the Respondent’s reasonable attorney’s fees and costs of the Office of Administrative Hearings if the 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.[38] The complaint in this matter was not frivolous, and the fact that the Complainant was not able to meet her burden of proving the case by clear and convincing evidence does not render the complaint frivolous. Therefore, Respondent’s request for attorney’s fees is denied.
B.J.H.,
S.M.M., J.A.E.