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7-0320-20019-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Jason Klubben, Complainant, vs. MCCL State PAC and Jake Cimenski Campaign Committee, Respondents. |
PROBABLE CAUSE ORDER
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The above-entitled matter came on for a probable cause hearing as provided by Minn. Stat. § 211B.34, before Administrative Law Judge Richard Luis on November 5, 2008, to consider a complaint filed by Jason Klubben on October 29, 2008. The probable cause hearing was conducted by telephone conference call.
Alan W. Weinblatt,
Weinblatt & Gaylord, PLC,
Based on the record and all the proceedings in this matter, and for the reasons stated in the attached Memorandum, the Administrative Law Judge finds that there is probable cause to believe that the Respondents violated Minnesota Statute § 211B.06 (false campaign material).
IT IS HEREBY ORDERED:
1. That there is probable cause to believe that Respondents MCCL State PAC and Jake Cimenski Campaign Committee violated Minnesota Statute § 211B.06 with respect to campaign material concerning Jerry Newton.
2. That this matter is referred to the Chief Administrative Law Judge for assignment to a panel of three administrative law judges pursuant to Minnesota Statute § 211B.35.
Dated: November 10, 2008
/s/
Richard C. Luis____
RICHARD C. LUIS
Administrative Law Judge
Respondent Jake Cimenski was the Republican-endorsed candidate for Minnesota House District 49B in the November 4, 2008, election. He was defeated by Jerry Newton, the DFL-endorsed candidate.[1] Prior to the election, Mr. Cimenski paid for a campaign flyer that was prepared by MCCL State PAC. The flyer purported to compare the candidates on issues concerning abortions. Under Jerry Newton’s name were the following three sentences:
● Voted in favor of taxpayer funding of abortions
● Voted against legislation to outlaw cruel saline abortions.
● Has been endorsed by Take Action MN, a pro-abortion political action committee which supports Roe v. Wade, a court decision allowing abortion for any reason, even as a method of birth control.
The Complaint alleges that the first two sentences are false because Mr. Newton has not voted on either the subject of taxpayer funding of abortions or on the subject of saline abortions. The Complainant further asserts that Respondents knew the statements were false or communicated them with reckless disregard as to whether they were false.
At the probable cause hearing, Mr. Fischbach admitted that the two identified statements are false and that MCCL made a “gross error” in preparing the flyer. Mr. Fischbach explained that the wrong text was placed on the flyer and that the mistake was not discovered before the mailing. Mr. Fischbach testified that MCCL mailed approximately 3,000 of these flyers with the false statements to residents of District 49B on or about October 20, 2008. Mr. Fischbach further stated that once MCCL was made aware of the error, on or about October 29, 2008, it mailed to the same distribution list a corrected version of the flyer that contained the following notice:
In a prior mailing prepared by MCCL State PAC it was stated that Jerry Newton “voted in favor of taxpayer funding of abortion” and “voted against legislation to outlaw cruel saline abortions.” This information was incorrect as Jerry Newton has never voted in the Minnesota House of Representatives. MCCL regrets this error.[2]
Mr. Fishbach admitted that he did not review the flyers before they were
printed and mailed. However, he stated
that for purposes of quality control, he will in the future play a role in
checking campaign material prior to dissemination.
Mr. Cimenski’s campaign committee paid for the campaign flyer. Mr. Cimenski also admitted at the probable
cause hearing that the two statements on the flyer are false. Mr. Cimenski testified that he did not review
the flyer before it was disseminated, and instead relied on MCCL to prepare and
disseminate the flyer.
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.
The Administrative Law Judge finds the Complainant has submitted sufficient evidence to support finding there is probable cause to believe the Respondents violated Minn. Stat. § 211B.06 with respect to campaign flyer at issue. There is no dispute that the Respondents participated in the preparation and dissemination of false campaign material designed to defeat Jerry Newton’s election to public office. A panel of Administrative Law Judges should determine whether the Respondents did so knowingly or with reckless disregard and, if so, what penalty is appropriate. Accordingly, this matter will be referred to the Chief Administrative Law Judge for assignment to a panel of three administrative law judges for an evidentiary hearing.
R.C.L.