ORDER ON REQUEST

for ISSUANCE OF

SUBPOENA DUCES TECUM

The above matter is pending before Presiding Administrative Law Judge Bruce Johnson on the House Republican Campaign Committee’s subpoena request. The Complainant filed its request on December 16, 2008. The Minnesota DFL filed a response to the subpoena request on December 19, 2008. The Complainant filed a reply on December 22, 2008, and the record with respect to this issue closed on that date.

David Asp, Attorney at Law, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401, represents the House Republican Campaign Committee (HRCC). Alan Weinblatt, Attorney at Law, Weinblatt & Gaylord, PLC, 111 East Kellogg Boulevard, Suite 300, St. Paul, MN 55101, represents the Minnesota DFL State Committee.

Based on the record herein, and for the reasons stated in the following Memorandum, the Presiding Administrative Law Judge makes the following:

ORDER

IT IS HEREBY ORDERED:

1. That Complainant’s request for issuance of a subpoena duces tecum is GRANTED.

2. That Respondent shall produce the documents to the Complainant by January 27, 2009.

Dated: January 5, 2009

/s/ Bruce H. Johnson_____

BRUCE H. JOHNSON

Administrative Law Judge

MEMORANDUM

On October 17, 2008, Roger Sween filed a campaign complaint against Tim Kelly, the Republican-endorsed candidate for the Minnesota House of Representatives seat in District 28A. The complaint alleged that a publisher of a local newsletter made a prohibited contribution of advertising to Mr. Kelly, and that Mr. Kelly either knowingly accepted or aided and abetted this prohibited corporate contribution. That complaint was assigned to Administrative Law Judge Kathleen D. Sheehy, who dismissed it in its entirety following a probable cause hearing on October 24, 2008.[1]

On some date between October 17 and October 24, 2008, the Minnesota State DFL party prepared and disseminated a flyer critical of Mr. Kelly. The flyer stated in part that “Kelly is under investigation for accepting an illegal campaign contribution from a corporation.” The flyer cited “State of Minnesota OAH Docket No. 3-0320-19986” in support of this statement. The Complainant thereafter filed a campaign complaint against the Minnesota State DFL, alleging the statement that Mr. Kelly was “under investigation” was a knowingly false statement of fact made in violation of Minn. Stat.
§ 211B.06. The undersigned ALJ found probable cause to believe the Respondent violated § 211B.06, and the matter is scheduled for hearing on February 5, 2009.

The Complainant has requested that the OAH issue a subpoena duces tecum in this matter requiring Respondent to produce the following documents one week prior to the evidentiary hearing:

1. All documents referring to or evidencing the date on which the political advertisement [at issue] was produced or disseminated, including but not limited to e-mail communications, invoices, productions, schedules, or drafts.

2. All documents showing the identity of individuals or entities responsible for the production or dissemination of the political advertisement [at issue].

3. All documents relating to the facts giving rise to Roger Sween’s complaint against Tim Kelly and P. Hanson in Sween v. P. Hanson Marketing, Tim Kelly, Tim Kelly for House, OAH Case No. 3-0320-19985-CV, including but not limited to communication between Respondent (including its employees and agents) and Roger Sween.

The Complainant argues that its request is narrowly tailored to discover the timeline of the DFL’s creation and distribution of the campaign flyer, which is a central issue in this case. The Complainant also asserts that production of these documents will place a minimal burden on the Respondent as all of the documents relate to a very short time period in October 2008.

The Respondent objects only to the third category of the requested documents. The Respondent contends that the prior campaign complaint has nothing to do with any issue in the current case, and that the information sought in paragraph 3 has nothing to do with the timing of the DFL’s production or distribution of the flyer at issue.

Campaign complaints are not contested cases within in the meaning of chapter 14 and are not otherwise governed by chapter 14.[2] Consequently, all of the discovery procedures available to parties in contested case proceedings are not available to parties in these cases. However, there is authority to permit the issuance of a subpoena in campaign complaint matters. Under Minn. Stat. § 14.51, the Chief Administrative Law Judge may issue a subpoena for the attendance of a witness or the production of documents that are material “to any matter being heard by the Office of Administrative Hearings.”[3] Based on this authority, the Office has on prior occasions issued subpoenas in campaign complaint matters requiring the attendance of witnesses or the production of documents.[4]

The Administrative Law Judge concludes that the requested subpoena seeks documents that are relevant to the issues set for hearing in this matter, including the information sought under Paragraph 3. These documents may contain information disclosing the extent to which the Respondent was involved, if at all, in the filing of the previous complaint, which may in turn be relevant to the Respondent’s knowledge of the truth or falsity of its claim that “Tim Kelly is under investigation.” Accordingly, the Complainant’s request for issuance of the subpoena is granted. The OAH will issue the subpoena and the Respondent shall produce the documents to the Complainant by Tuesday, January 27, 2009.

B.H.J.

[1] Sween v. Kelly, Kelly for House, and P. Hanson Marketing, Inc., Dismissal Order, OAH File No. 3-0320-19985-CV.

[4] See Wigley and Jackson v. Orono Public Schools, et al, OAH File No. 3-6326-19653-CV (Order dated July 3, 2008); Young and Lehmann v. Stenglein and Stenglein Volunteer Committee, OAH File No. 12-6326-17493-CV (Order dated October 4, 2006)..