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16-0320-20028-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Judy Lindsay, Complainant, vs. Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Judy Lindsay, [Street
Address Redacted], Rosemount, MN 55068; Minnesota DFL State Committee, 255 E.
Plato Boulevard,
On October 31, 2008, Judy Lindsay filed a Campaign Complaint with the Office of Administrative Hearings alleging that the Minnesota DFL State Committee violated Minnesota Statutes § 211B.06 by preparing and disseminating false campaign material. 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 Monday, November 10, 2008. The hearing will be held by call-in telephone conference. You must call: Nancy Hansen of my office at 651-361-7874 before that time and she will give you the call in number. When the system asks for your numeric pass code, enter “20028” 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 Cervantes at Manuael.Cervantes@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: November 5, 2008
/s/ Manuel J. Cervantes
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MANUEL
J. CERVANTES Administrative
Law Judge |
Judy Lindsay is a candidate for State Representative in House District 37B. She alleges that Respondent disseminated a campaign flyer that contained false campaign material. The flyer, attached to the Complaint, states in part:
Jobs and Health Care Don’t Top Judy Lindsay’s Narrow Agenda
What’s at the top of Judy Lindsay’s agenda? Not vanishing jobs…not the cost of health care…and not the education of our children.
What’s on the top of her list? Removing sexual orientation from
Judy even stepped down from the
school board to devote “more time to a nonprofit group she started” that is
dedicated to striking anti-discrimination protections from state laws. (Star
Tribune, 01/07/2004)
…
Say NO to Judy Lindsay
Complainant alleges
that these statements are false for three reasons. First, she asserts that she has campaigned on
the economy, jobs, health care and education, and that her website and the Pioneer Press voter guide make it clear
that these issues are included in her platform.
She asserts that it is a “lie” for Respondent to claim these issues are
not part of her agenda and that Respondent is “purposefully trying to mislead
the voters.” Secondly, she asserts that
she has never talked about or included “removing sexual orientation from the
In Defense of Innocence, A Legal Defense for Those Speaking Out for Biblical Family Values – In Defense of Innocence is a faith-based, nonprofit organization established to protect children’s innocence from exploitation. In Defense of Innocence will provide education, training, and support based on biblical truths and principles.
Complainant alleges Respondent has violated
Minn. Stat. § 211B.06 by publishing these false statements about her.
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.
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. The statements that Lindsay would “remove
sexual orientation from
M.
J. C.