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12-0320-20012-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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John Swon, Complainant, vs. Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: John Swon, [Street Address Redacted], Edina, MN 55435; Minnesota
DFL Party,
On October 27, 2008, John Swon 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 concerning Representative Jan Schneider. After reviewing the Complaint and attached exhibits, the undersigned Administrative Law Judge has determined that the Complaint sets forth a prima facie violation 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 1:30 p.m. on October 31, 2008. The hearing will be held by call-in telephone conference. You must call: 1-888-566-4893 at that time. When the system asks for your numeric pass code, enter “12000” 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 Mihalchick at Steve.Mihalchick@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 28, 2008
s/
Steve M. Mihalchick_____
STEVE M. MIHALCHICK
Administrative Law Judge
John Swon alleges
that Respondent Minnesota DFL violated Minn. Stat. § 211B.06 by preparing and
disseminating false campaign material concerning Jan Schneider, who is running
for election in House District 41B. Swon
maintains that Respondent disseminated two pieces of literature which contain
false statements. The first piece states
that “Schneider supports expanding “voucher-like” tax credits to send students
to private schools – just the wrong answer for our public schools.” The piece of literature cites “Minnesota Sun
Newspapers, 11/10/2005” as the source of the statement. Complainant Swon asserts that the citation to
the Minnesota Sun Newspaper is incorrect.
The second piece of
literature states that “Schneider wants to reduce requirements that insurance
companies provide Minnesotans with basic coverage for critical needs like
cancer screenings, maternity care and mental health care.” The piece cites a League of Women Voters
Debate, which occurred on September 27, 2008 (“LWV Debate, 9/27/08”) as the
source of the statement. Complainant
asserts that candidate Schneider never made any such claim during the
debate.
…[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.
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.[1] 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 statement 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 Respondent “in fact entertained
serious doubts” as to the truth of the ad or acted “with a high degree of
awareness” of its probable falsity.[2]
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.[3] “Prima facie” means “[s]ufficient to
establish a fact or raise a presumption unless disproved or rebutted.”[4] “Prima facie evidence” is “[e]vidence that
will establish a fact or sustain a judgment unless contradictory evidence is
produced.”[5] 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 finds that the
Complainant has alleged a prima facie violation of Minn. Stat. § 211B.06
against Respondents. This matter will
proceed to a probable cause hearing as scheduled by this Order.
S. M. M.