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4-0320-20027-CV |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
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House Republican Campaign Committee, Complainant, vs. Respondent. |
ORDER DENYING REQUESTFOR RECONSIDERATION |
This matter is before Administrative Law Judge Bruce H. Johnson on the Minnesota DFL State Committee’s request for reconsideration of the probable cause determination issued on December 2, 2008. The Respondent filed its request on December 3, 2008. The House Republican Campaign Committee filed a response to the request on December 4, 2008.
David
Asp, Attorney at Law, Lockridge Grindal Nauen P.L.L.P.,
Based on the record herein, and for the reasons stated in the following Memorandum, the Chief Administrative Law Judge makes the following:
IT IS HEREBY ORDERED:
1. That Respondent’s request for reconsideration is DENIED.
2. That this matter shall be scheduled for an evidentiary hearing to be conducted by a panel of three Administrative Law Judges.
Dated: December 10, 2008
/s/
Bruce H. Johnson
BRUCE
H. JOHNSON
Administrative
Law Judge
MEMORANDUM
This
matter concerns a campaign flyer that was prepared and disseminated by the
Minnesota State DFL party on or about October 24, 2008. The flyer was critical of Tim Kelly, the
Republican-endorsed candidate for the Minnesota House of Representatives seat
in District 28A.[1]
The flyer stated in part that: “Kelly is
under investigation for accepting an illegal campaign contribution from a
corporation.” The flyer cited “State of
On November 6, 2008, Administrative Law Judge Bruce H. Johnson held a probable cause hearing in this matter, and on December 2, 2008, issued an Order finding probable cause to believe that Minnesota DFL violated Minn. Stat. § 211B.06 by preparing and disseminating false campaign material with respect to Tim Kelly. Specifically, the Judge concluded that the statement on the flyer that “Kelly is under investigation for accepting an illegal campaign contribution from a corporation,”
raises a question of fact as to whether an investigation or inquiry into the facts on which the complaint was based had begun at the time the flyer was prepared or disseminated such that it may be said that Kelly was ‘under investigation.’[2]
By letter dated December 3, 2008, the Respondent requested reconsideration of the probable cause determination. The Respondent maintains that it is “undisputed” that the campaign flyer at issue was distributed on October 25, 2008, which was one day after the probable cause hearing in the prior complaint matter when the Kelly complaint was still being considered by Administrative Law Judge Sheehy. Given this timing, the Respondent argues that the statement on the flyer that “Kelly is under investigation” was true when made, and therefore the complaint in this matter should be dismissed.
Petitions for reconsideration are
governed by Minn. Stat. § 211B.34, subd. 3.
Under this statute, they are permitted only if the administrative law
judge dismisses the complaint following a probable cause hearing. In such instances, requests for reconsideration must be directed to the
Chief Administrative Law Judge and may only be granted if the Chief
Administrative Law Judge determines that the assigned Administrative Law Judge
made “a clear error of law.” There is no
provision in the statute for reconsideration when the ALJ finds probable cause.
Even if reconsideration were procedurally proper in this instance, the
Administrative Law Judge would deny the request on the merits. Minnesota Statutes
§ 211B.06 prohibits both the preparation and dissemination of false campaign
material. The complaint alleges that the
flyer at issue was received at the homes of District 28A residents on Saturday,
October 25, 2008. It is not clear from
the record, however, when the flyer was prepared and when it was disseminated. As the complaint states, given the timing of
the receipt of the flyer, it is possible that it was prepared before the
probable cause hearing and perhaps before the prima facie order was issued on
October 20, 2008. Thus, contrary to the
Respondent’s claim, the complaint does present a factual inquiry for the three
judge panel as to whether Mr. Kelly was “under investigation” at the time the
flyer was prepared or disseminated.
Respondent’s request for reconsideration is denied and this matter will
proceed to an evidentiary hearing as ordered.
B.H.J.