3-0320-19995-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Sarah Anderson,

                                           Complainant,

vs.

 

Clinton J. Faust and Clint Faust for State Rep Committee,

                                             Respondents.

 

 

DISMISSAL

 ORDER

 

This matter came on for a probable cause hearing under Minnesota Statutes § 211B.34, before Administrative Law Judge Kathleen D. Sheehy on October 27, 2008, to consider a complaint filed by Sarah Anderson on on October 20, 2008.  The probable cause hearing was conducted by telephone conference call.  The record closed on October 29, 2008, upon receipt of post-hearing comment by the Complainant. 

David W. Asp, Lockridge Grindal Nauen PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN  55401-2179, appeared for Sarah Anderson (Complainant).

Alan W. Weinblatt, Weinblatt & Gaylord, PLC, 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, MN  55101, appeared for Clinton J. Faust and the Clint Faust for State Rep Committee (Respondents). 

Based on the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge finds that there is not probable cause to believe that the Respondents violated Minn. Stat.           § 211B.06.     

ORDER

          IT IS ORDERED:  That there is not probable cause to believe that Respondents violated Minnesota Statute § 211B.06 as alleged in the Complaint, and this matter is accordingly DISMISSED.

Dated:  October 31, 2008

 

 

                                                  _/s/ Kathleen D. Sheehy______         

                                                  KATHLEEN D. SHEEHY

                                                  Administrative Law Judge

 

Digitally recorded; no transcript prepared

 

NOTICE OF RECONSIDERATION AND APPEAL RIGHTS

Minnesota Statutes § 211B.34, subdivision 3, provides that the Complainant has the right to seek reconsideration of this decision on the record by the Chief Administrative Law Judge.  A petition for reconsideration must be filed with the Office of Administrative Hearings within two business days after this dismissal.

          If the Chief Administrative Law Judge determines that the assigned Administrative Law Judge made a clear error of law and grants the petition, the Chief Administrative Law Judge will schedule the complaint for an evidentiary hearing under Minnesota Statutes § 211B.35 within five business days after granting the petition.

If the Complainant does not seek reconsideration, or if the Chief Administrative Law Judge denies a petition for reconsideration, then this order is the final decision in this matter under Minn. Stat. § 211B.36, subd. 5, and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat.    §§ 14.63 to 14.69.

MEMORANDUM

This case involves a campaign flyer prepared and disseminated by Clint Faust and the Clint Faust for State Rep Committee.  Superimposed over a photograph of Faust and his supporters are the words:  “My opponent voted against the MN G.I. education bill and programs partnering the U of M & Mayo Clinic.”[1]  Anderson, who is Faust’s opponent, alleges the statement is false because she voted in favor of H.F. 1063, a bill that both established and funded the Minnesota G.I. Bill program and funded the University of Minnesota and Mayo Foundation Partnership.[2]   The Governor signed H.F. 1063 on May 30, 2007, and it became effective July 1, 2007.  Faust contends the statement printed on the flyer is true, because Anderson voted against S.F. 1989, an earlier version of the bill that was passed by the legislature but vetoed by the Governor on May 9, 2007.[3]  Anderson maintains she voted against S.F. 1989 in part because it did not adequately fund the G.I. Bill.

The evidence developed at the probable cause hearing showed that the first bill, S.F. 1989 (the Higher Education Appropriations Bill) was introduced in the Senate on March 19, 2007.[4]  As introduced, in relevant part, the bill called for $10 million in funding for the Minnesota G.I. Bill program for the 2008-09 biennium.[5]  A later version of the bill provided $20 million in funding for the G.I. Bill and $24 million in funding for the University of Minnesota/Mayo Foundation Partnership for the biennium.[6]  On April 19, 2007, the House considered a number of amendments to the bill, one of which was to increase funding for the G.I. Bill by $6.24 million, for a total of $26.24 million for the biennium.[7]  Anderson voted in favor of this amendment, but the amendment did not pass.[8]  That day the House voted on and approved final passage of the bill (at a funding level of $20 million for the G.I. Bill and $24 million for the University/Mayo Foundation for the biennium); Anderson voted against final passage.[9]

Upon its return to the Senate, the Senate refused to concur with the bill as passed in the House, and a Conference Committee was appointed.  The Conference Committee revised the funding for the Minnesota G.I. Bill program to provide $10 million and revised funding for the University/Mayo Foundation to provide $25 million for the biennium.[10]  On May 8, 2007, Anderson voted in favor of a motion to return the bill to the Conference Committee; the motion failed.[11] When the House voted to re-pass the bill as amended by the Conference Committee, Anderson voted against it.[12] Anderson maintains she voted against S.F. 1989 in part because it did not adequately fund the G.I. Bill.[13]  The bill as amended by the Conference Committee passed both houses of the legislature and was presented to the Governor on May 9, 2008; on May 10, 2007, the Governor vetoed the bill for a variety of reasons, including the failure to provide adequate funding for the Minnesota G.I. Bill.[14]

After the veto, a new version of the Higher Education Appropriations Act was included in H.F. 1063.[15]  This version called for $12 million in funding for the Minnesota G.I. bill and $25 million in funding for the University of Minnesota and Mayo Foundation Partnership for the biennium.[16]  On May 21, 2007, the House voted on the bill, and it passed overwhelmingly.  Anderson voted in favor of it.[17]  The Governor signed the bill on May 29, 2008.

On October 7, 2008, Anderson and Faust participated in a candidate forum sponsored by the League of Women Voters.  During the forum, Anderson said she had supported $12 million in funding for the Minnesota G.I. bill.[18]  Approximately one week later, Faust mailed the campaign flyer asserting that Anderson had voted against the Minnesota G.I. bill.[19]  Faust testified that in preparing the brochure, he relied on research performed by a volunteer showing that Anderson had voted against S.F. 1989.  He further testified that he did not know that the Governor had vetoed S.F. 1989; that a different version of the bill was later enacted; or that Anderson had voted in favor of H.F. 1063, until he received the complaint in this matter.[20]        

Legal Analysis

The purpose of a probable cause hearing is to determine whether there are sufficient facts in the record to believe that a violation of law has occurred as alleged in the complaint.[21]  The Office of Administrative Hearings looks to the standards governing probable cause determinations under Minn. R. Crim. P. 11.03 and by the Minnesota Supreme Court in State v. Florence.[22]  The purpose of a probable cause determination is to answer the question whether, given the facts disclosed in the record, it is fair and reasonable to require the respondent to go to hearing on the merits.[23]

 

          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.[24]  Based upon this standard, the Complainant has the burden at the hearing to prove by clear and convincing evidence that the Respondents either published the statements knowing the statements were false, or that they “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[25]  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.[26]

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.[27]

In Kennedy v. Voss, the incumbent initially voted in favor of the county budget funding a variety of programs, and later voted against it because he disagreed with one particular appropriation.  His opponent circulated literature stating that the incumbent had voted against a variety of programs funded in the budget.  The Supreme Court concluded that the inferences to be drawn from the true fact of the incumbent’s vote, as to whether he supported particular programs, did not fall within the purview of the statute.  In the Court’s view, the public is adequately protected from any extreme or illogical inferences drawn from those facts by the campaign process itself.[28]    

 

           This case cannot be distinguished from Kennedy v. Voss.  While the statement at issue may be incomplete and arguably unfair, in that it does not accurately characterize Anderson’s every vote on the issue of funding for the Minnesota G.I. Bill or the University of Minnesota/Mayo Foundation Partnership, the Administrative Law Judge concludes that the statement is not factually false.  Anderson did vote against S.F. 1989 on April 19, 2007, and on May 8, 2007.  The fact that she voted in favor of a subsequent version of the bill on May 21, 2007, does not make the factual assertion in the flyer untrue.  Under the rationale of Kennedy, her remedy is to give voters the opportunity to judge for themselves the inferences that can properly be drawn from her voting record.  Accordingly, this matter must be dismissed.    

                                                                                K.D.S.


[1] Comp. Ex. 1.

[2] Comp. Exs. 2 & 3.

[3] Resp. Exs. 1 & 3; Comp. Ex. 5.

[4] Comp. Ex. 5.

[6] https://www.revisor.leg.state.mn.us/bin/bldbill.php?bill=ues1989.1.html&session=1s85 (1st Unofficial Engrossment, April 13, 2007); Anderson Aff. ¶ 3..

[8] Id.; Anderson Aff. ¶ 4; Comp. Ex. 6.

[13] Anderson Aff. ¶ 9.

[16] Id.

[18] Comp. Ex. 9.

[19] Testimony of Sarah Anderson.

[20] Testimony of Clint Faust.

[21] Minn. Stat. § 211B.34, subd. 2.

[22] 239 N.W.2d 892 (Minn. 1976); see also Black’s Law Dictionary 1219 (7th ed. 1999) (defining “probable cause” as “[a] reasonable ground to suspect that a person has committed or is committing a crime.”)

[23] State v. Florence, 239 N.W.2d at 902.

[24] New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964); State v. Jude, 554 N.W.2d 750, 754 (Minn. App. 1996).

[25] See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v. Louisiana, 379 U.S. 64, 74 (1964); see also Riley v. Jankowski, 713 N.W.2d 379, 401 (Minn. App. 2006), rev. denied (Minn. July 20, 2006).

[26]Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).

[27] Kennedy v. Voss, 304 N.W.2d 299 (Minn. 1981); Hawley v. Wallace, 137 Minn. 183, 186, 163 N.W. 127, 128 (1917); Bank v. Egan, 240 Minn. 192, 194, 60 N.W.2d 257, 259 (1953); Bundlie v. Christensen, 276 N.W.2d 69, 71 (Minn. 1979) (interpreting predecessor statutes with similar language).

[28] Kennedy v. Voss, 304 N.W.2d at 300.