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11-0320-20021-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Cullen Sheehan, Campaign Manager, Coleman
for Senate,
Complainant, vs. Al Franken, Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION; AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Cullen Sheehan (Complainant),
On October 30, 2008, Cullen Sheehan, Campaign Manager, Coleman for Senate, filed a Complaint with the Office of Administrative Hearings alleging the Respondent violated Minnesota Statutes § 211B.06 by preparing and disseminating false campaign material. After reviewing the Complaint and attached documents, the undersigned Administrative Law Judge has determined that the Complaint sets forth a prima facie violation of § 211B.06 with respect to one of the allegations made in the Complaint.
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 3:00 p.m. on Wednesday,
November 5, 2008. The hearing
will be held by call-in telephone conference. You must call: 1-800-369-2180 at that time.
Follow the directions and enter the code “20021” when asked for the
meeting number. The probable cause hearing will be conducted pursuant to
Minn. Stat. § 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 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 faxed to Judge Neilson at 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 Minn. Stat. § 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 Minn. Stat. § 211B.34, subd. 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: November 3, 2008
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge 651-361-7845 |
The Complaint concerns the 2008 Minnesota U.S. Senate
race. The Complaint alleges that Al
Franken knowingly authorized and broadcast on television and radio false
political advertising designed to injure or defeat the candidacy of Senator
Norm Coleman. Transcripts of the
advertisements were attached to the Complaint.
The television advertisement at issue stated that Senator Coleman is
“[r]anked the 4th most corrupt senator in
The Complaint maintains that both of these statements are false. It asserts that the statements made in both advertisements are based on material found on a website (www.crewsmostcorrupt.org) operated by Citizens for Responsibility and Ethics in Washington (CREW). The Complaint alleges that the statement in the advertisements that Senator Coleman is included on CREW’s list of the “20 Most Corrupt Members of Congress” is false because he is not, in fact, included among the twenty members of Congress listed on CREW’s website. Instead, CREW identified Senator Coleman along with three Representatives on its list of “Dishonorable Mentions.”[1] All told, there are three senators identified on CREW’s list of the “20 Most Corrupt Members of Congress,” and one senator (Coleman) identified on CREW’s list of “Dishonorable Mentions.”
The Complainant further contends that CREW is a left-wing
organization and not a “bipartisan watchdog group” as claimed in the
advertisements. In support of this
allegation, the Complaint states that Melanie Sloan, the Executive Director of
CREW, has previously served in various staff positions for Democratic members
of Congress and has made 50 separate appearances on Mr. Franken’s radio show; CREW
board member Daniel Berger has contributed $44,500 to the Democratic Senatorial
Campaign Committee during this election cycle and donated the maximum amount
permitted by federal law to the Franken for Senate campaign; CREW board member
John Luongo has donated $2,000 to the Franken for Senate campaign; and CREW
board member Craig Kaplan has contributed $5,000 to the Democratic
Senatorial Campaign Committee. According
to the Complainant, the Democratic Senatorial Campaign Committee has injected
$4 million into
The Complainant also relies on several newspaper articles to further support his view that CREW is not a “bipartisan watchdog group.” The Complainant alleges that the Capitol Hill newspaper Roll Call described CREW as “a liberal watchdog group” in a 2005 column and noted in a January 29, 2008, article that “[s]everal news stories—in this newpaper as well as in the Washington Post, the Wall Street Journal and others—have pointed out that much of CREW’s funding comes from liberal groups and big donors to Democratic candidates and causes. And all but a handful of its complaints against Members of Congress have targeted Republicans.” The Complaint asserts that a March 30, 2005, editorial published in The Hill (another Capitol Hill newspaper) stated that “[i]n the overwhelming majority of complaints and critiques detailed in news release [sic] posted on CREW’s website, Republicans or their allies are the targets.” Finally, the Complainant contends that a March 14, 2006, article in The Hill reported that CREW had “publicized four ethics complaints against Republican lawmakers since the beginning of this year [2006]” and questioned whether CREW’s political activities could violate IRS rules governing tax-exempt groups.
The Complainant also argues that “CREW does not state that Senator Coleman is ‘[l]iving almost rent free,’ as the Franken and Franken campaign radio and television ads falsely state.” Moreover, the Complainant asserts that there is no basis for the claim that Senator Coleman is “[l]iving almost rent free.”
Therefore, the Complaint claims that Mr. Franken knew or should have known that these statements were false and chose to broadcast the statements regardless in order to injure or defeat Senator Coleman.[2] At this stage of the proceeding, the presiding Administrative Law Judge is required to determine whether the Complaint, on its face, sets forth a prima facie violation of the statute.[3]
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.
In Kennedy v. Voss,[4] the Minnesota Supreme Court observed that the statute is directed against the evil of making false statements of fact and not against unfavorable deductions, or inferences based on fact - even if the inferences are “extreme and illogical.”[5] The Court pointed out that the public is protected from such extreme and illogical inferences by the ability of other speakers to rebut these claims during the campaign process.[6] In addition, expressions of opinion, rhetoric, and figurative language are generally protected speech if, in context, the reader would understand that the statement is not a representation of fact.[7]
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.[8] A statement is substantially accurate if its “gist” or “sting” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced. Where there is no dispute as to the underlying facts, the question whether a statement is substantially accurate is one of law.[9]
The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard from New York Times v. Sullivan.[10] 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 advertisement 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 the Respondents “in fact entertained serious doubts” as to the truth of the ad or acted “with a high degree of awareness” of its probable falsity.[11]
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.[12] “Prima facie” means “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.”[13] “Prima facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.”[14] 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.
After reviewing the Complaint and its attachments, the
Administrative Law Judge concludes that the Complaint sufficiently alleges a
prima facie violation of Section 211B.06 with respect to the statements that
Norm Coleman is “[r]anked the 4th most corrupt senator in
The Complaint fails, however, to allege a prima facie
violation with respect to the statements that Senator Coleman is “living almost
rent free in the million dollar home of a
Because the Complaint has alleged a prima facie violation of
Minn. Stat.
§ 211B.06 with respect to the statements that Norm Coleman is “ranked the 4th
most corrupt senator in Washington” by a “bipartisan watchdog group,” this allegation
will proceed to a probable cause hearing as indicated in the Order.[17]
B.L.N.
[1] The Administrative Law Judge notes that the heading of CREW’s website is: “The 20 Most Corrupt Members of Congress (and 4 to watch).” Presumably, Senator Coleman and the three Representatives listed under the heading “Dishonorable Mentions” are the “4 to watch.”
[2] The Complainant filed additional exhibits with the Office of Administrative Hearings on Monday November 3, 2008. Exhibit C is a transcript of excerpts from a program on KSTP-Channel 5 that aired on October 29, 2008. Exhibit D is a copy of an article that was published in the Star Tribune on October 30, 2008. These exhibits may be offered as evidence at the probable cause hearing. It appears that the Complainant did not provide a copy of these exhibits to Respondent Franken or his counsel. The parties are reminded that they must provide a copy to the opposing party of any document they file with the Office.
[3]
The Administrative Law Judge notes that the Respondent filed a motion to
dismiss. However, at this stage, review
is limited to the complaint and its attachments. See,
[4]
304 N.W.2d 299 (
[5]
[6]
[7]
Jadwin v. Minneapolis Star and Tribune
Co., 390 N.W.2d 437, 441 (Minn. App. 1986), citing Old Dominion Branch
No. 496, National Assoc. of Letter Carriers v. Austin, 418 U.S. 264, 284-86
(1974); Greenbelt Coop. Publishing Assoc.
v. Bresler, 398 U.S. 6, 13-14 (1970).
See also Milkovich v. Lorain
Journal Co., 497
[8]Jadwin, 390 N.W.2d at 441.
[9]
[10] New York Times v. Sullivan, 376
[11]
St. Amant v. Thompson, 390
[12]
[13] Black’s Law Dictionary 1228 (8th ed. 2004).
[14]
[15]
See St. Amant, 390
[16] See, Fine v. Bernstein, 726 N.W.2d 137,
144 (
[17] The Complaint has requested injunctive relief. However, Administrative Law Judges lack authority to grant injunctive relief.