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OAH 3-0320-21132-CV |
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STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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House
Republican Campaign Committee, Complainant, vs.
Respondent. |
FINDINGS
OF FACT, CONCLUSIONS AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on
Paul Kohls,
Attorney at Law, appeared on behalf of the House Republican Campaign Committee
(Complainant).
Brian Dillon,
Attorney at Law, Gray, Plant, Mooty, Mooty & Bennett, P.A., appeared on
behalf of
STATEMENT OF ISSUE
Did Alliance for a Better Minnesota violate
Minnesota Statute § 211B.06 by intentionally preparing and disseminating false campaign
material with respect to Republican
candidates and Minnesota House of Representatives members Kurt Zellers, Marty
Seifert and Tom Emmer, that it knew was
false or communicated to others with reckless disregard as to whether it was
false?
The panel concludes that the
Complainant has failed to establish by clear and convincing evidence that Respondent
violated Minn. Stat. § 211B.06.
Based upon the entire record, including
the facts stipulated to by the parties, the panel makes the following:
FINDINGS OF FACT[1]
1.
The
2.
The House
Republican Campaign Committee (HRCC or Complainant) is a political party unit
whose primary purpose is to promote the election of Republican Candidates to
the Minnesota House of Representatives.[3]
3.
Kurt Zellers is
a Republican member of the Minnesota House of Representatives and is running
for re-election in November 2010.
Representatives Marty Seifert and Tom Emmer are both candidates for
governor and are both seeking the Republican Party’s endorsement.
4.
Sometime in
January 2010, ABM prepared and published on various websites a “banner ad” that
contains photographs of Republican Representatives Zellers, Seifert and Emmer
alongside Governor Pawlenty with the text “Tim Pawlenty and his GOP Friends
Took Money From Minnesota Renters.
Demand Yours Back Now!”[4]
5.
The HRCC
contends the banner ad is false because reduction in the Renters’ Credit
program was not achieved through legislation but through the Governor’s use of unallotment. ABM knew at the time it published the
advertisement that funding for the Renter’s Credit program was reduced through unallotment.
6.
On
7.
On
8.
On
9.
In January 2009,
Governor Pawlenty recommended budget proposals for fiscal year 2010-2011. The Governor’s proposals included cutting the
Renter’s Credit program by reducing the percentage of rent used to calculate
the refund from 19 percent of rent paid to 15 percent of rent paid.[8]
10.
On
11.
On
12.
House File 2323
was referred back to the Minnesota House of Representatives from a conference
committee and, after it was voted on and passed again without cuts to the
Renters’ Credit program, Governor Pawlenty vetoed the bill on
13.
On May 15, 2009,
Representative Seifert was quoted in an article that ran in the Bemidji Pioneer as stating that the DFL
legislators “sent all of the finance bills to the governor and created a $1
billion hole, and someone needs to be the adult in the room and use the
line-item veto authority given in the Constitution, along with unallotment
statutes to make sure our budget is balanced as the Constitution demands.”[12]
14.
In July of 2009,
Governor Pawlenty unalloted funding for a number of government programs,
including the Renters’ Credit program.[13]
15.
Governor Pawlenty’s
unallotment of funding for the Renters’ Credit program implements a reduction
in funding for the program by reducing the percentage of rent used to calculate
the refund from 19 percent to 15 percent of rent paid.[14]
16.
On
17.
On December 30,
2009, Ramsey County District Court Judge Kathleen Gearin issued a temporary
restraining order prohibiting the enforcement of certain unallotments
implemented by Governor Pawlenty because she found his exercise of unallotment
to be unconstitutional under the circumstances.[16]
18.
On
19.
On
20.
On February 9,
2010, Representatives Emmer and Seifert joined other Republican members of the
Minnesota House of Representatives in filing an amicus curiae brief with the Minnesota Supreme Court supporting
Governor Pawlenty’s unallotments and arguing that Judge Gearin’s order should
be reversed.[19]
21.
On
22.
ABM recently
prepared and published on various websites banner advertisements containing photographs
of Representatives Zellers, Seifert and Emmer with the caption, “These GOP
Legislators Wanted to Cut Your Renters [sic] Credit Rebates,” alongside
photographs of DFL Representatives Lenczewski and Bakk with the text: “These
DFLers Lead [sic] the Effort to Stop Them.”[20]
Based upon the foregoing Findings of
Fact, the panel makes the following:
CONCLUSIONS
1. Minn. Stat. § 211B.35 authorizes the panel of
Administrative Law Judges to consider this matter.
2. Campaign material is defined to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, …”[21] The web advertisement prepared and disseminated by ABM is campaign material within the meaning of that statute.
3. Minn. Stat. §
211B.06, subd. 1, provides, in part:
A person is guilty of a gross
misdemeanor who intentionally participates in the preparation, dissemination,
or broadcast of … campaign material with respect to the personal or political
character or acts of a candidate … that is designed or tends to elect, injure,
promote, or defeat a candidate for nomination or election to a public office …,
that is false, and that the person knows is false or communicates to others
with reckless disregard of whether it is false.
4. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[22]
5. The Complainant has failed to demonstrate that Respondent Alliance for a Better Minnesota violated Minn. Stat. § 211B.06 by intentionally preparing and disseminating false campaign material that it knew was false or communicated to others with reckless disregard as to whether it was false.
Based upon the record herein, and for
the reasons stated in the following Memorandum, the panel of Administrative Law
Judges makes the following:
ORDER
IT IS ORDERED:
That the House Republican Campaign
Committee’s Complaint against
Dated: April 27, 2010
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/s/ Kathleen
D. Sheehy |
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KATHLEEN D. SHEEHY |
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Presiding Administrative
Law Judge |
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/s/ Steve M.
Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative
Law Judge |
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/s/ Patricia
J. Milun |
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PATRICIA J. MILUN |
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Administrative
Law Judge |
Reported: Digitally recorded, no transcript prepared.
NOTICE
This is the final decision in this
case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek
judicial review as provided in
MEMORANDUM
Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated this section, a person must intentionally participate in the preparation or dissemination of campaign material that the person knows is false or communicates with reckless disregard of whether it is false.
As interpreted by the Minnesota Supreme Court, the statute is directed against false statements of fact and not against unfavorable deductions or inferences based on fact.[23] Moreover, 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.[24] Finally, 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.[25]
The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard applicable to defamation cases involving public officials from New York Times v. Sullivan.[26] Based upon this standard, the Complainant has the burden at the hearing to prove by clear and convincing evidence that the Respondent either published the statements knowing the statements were false, or that it “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[27]
The campaign material at issue in this case is an advertisement that ABM placed on various websites in January of 2010. The advertisement displayed photographs of Republican Representatives Seifert, Emmer and Zellers alongside Governor Pawlenty and under the statements: “Tim Pawlenty and His GOP Friends Took Money from Minnesota Renters. Demand Yours Back Now!”
According to the HRCC, “there is only one reasonable
interpretation of the advertisement at issue in this case – that
Representatives Zellers, Seifert and Emmer did something to take money from
After
reviewing all the evidence and considering the arguments of counsel, the panel
concludes that the statement at issue is not a false statement of fact. First, the statement that the Representatives
shown in the ad “took money from
But
even if it is assumed that the statement refers to the Renters’ Credit program,
it is not a false statement of fact. The
Complainant urges a hyper-literal reading of the statement focusing on the word
“took.” Because that word suggests some
sort of positive action on the part of the Representatives, the Complainant
argues it renders the statement false since it was only Governor Pawlenty’s
unilateral action that ultimately reduced the Renters’ Credit program.
The
record demonstrates that Representatives Seifert, Emmer and Zellers have all taken
public positions in the past in support of reducing the Renters’ Credit program
and all have been vocal supporters of Governor Pawlenty’s use of unallotment to
cut funding of programs in 2009. The
statement is at most an unfavorable deduction based on the Representatives’
past positions and conduct. As such, it does
not come within the purview of the statute.[29] Moreover, the statement is a fair
characterization of the Representatives’ positions with respect to the Renters’
Credit program. The fact that the
statement may not be literally true in every detail is not enough to support a
violation of Minn. Stat. § 211B.06. If
the statement is true in substance, inaccuracies of expression or detail are
immaterial.[30]
The panel finds the Minnesota Supreme Court’s decision in Kennedy v. Voss[31] to be controlling in this matter. In that case, an incumbent county commissioner complained that his opponent disseminated literature that unfairly characterized his support for programs serving the elderly. The incumbent initially voted in favor of the county budget, which funded a variety of programs including those serving the elderly. Later he voted against the entire budget because he disagreed with one particular appropriation. After that vote, his opponent circulated literature asserting that the incumbent “is not a supporter of programs for the elderly.”[32] The incumbent maintained that there were other votes, not cited in the challenger’s literature, which made the incumbent’s support of the referenced programs clear. The Minnesota Supreme Court held that inferences based on the true fact of the incumbent’s “no” vote, as to whether he supported particular programs, did not come within the purview of the statute.[33] The Court concluded that the public is adequately protected from extreme or illogical inferences drawn from facts by the campaign process itself.[34]
In this case, the panel finds the Complainant’s argument that the panel should find the statement to be factually false because the Representatives pictured in the ad did not literally “take money” from renters to be unavailing and one that is not supported by the case law. Like Kennedy, the Respondent in this matter is permitted to infer from the Representatives’ statements, votes on bills, and amicus curiae brief, that they supported reductions in the Renters’ Credit program. Saying they “took money” may be hyperbole, but it is ultimately correct to conclude these Representatives supported the funding reduction in this program.
Moreover, given that the advertisement at issue was disseminated in January, nine months before the election, Representatives Seifert, Emmer and Zellers have ample opportunity to respond directly to ABM’s claims and to communicate their positions to the voters prior to the November election.
The Complainant has failed to establish by clear and convincing evidence that the Respondent violated Minn. Stat. § 211B.06. The Complaint is therefore dismissed.
K.D.S.,
S.M.M., P.J.M.
[1] Prior to the
hearing, the parties agreed and stipulated to the facts set forth in the
Findings. The Stipulation of Facts
prepared and executed by the parties was received into evidence on the day of
the hearing.
[2] Stipulation
of Facts ¶ 16.
[3] Complaint ¶ 1.
[4] Stipulation of Facts at ¶ 1; Complaint Ex. B.
[5] Stipulation
of Facts at ¶ 35.
[6] Stipulation of Facts at ¶ 34.
[7] Stipulation of Facts at ¶ 33.
[8] Stipulation
of Facts ¶ 17.
[9] Stipulation of Facts at ¶ 19.
[10] Stipulation of Facts at ¶ 20.
[11] Stipulation of Facts at ¶¶ 21 and 22.
[12] Stipulation of Facts at ¶ 31.
[13] Stipulation
of Facts at ¶ 25.
[14] Stipulation
of Facts at ¶ 26.
[15] Stipulation of Facts at ¶ 32.
[16] Stipulation of Facts at ¶ 27.
[17] Stipulation
of Facts at ¶ 28.
[18] Stipulation of Facts at ¶ 29.
[19] Stipulation of Facts at ¶ 30.
[20] Stipulation
of Facts at ¶ 4.
[21] Minn. Stat. §
211B.01, subd. 2.
[22] Minn. Stat. § 211B.32, subd. 4.
[23] Kennedy v. Voss, 304 N.W.2d 299 (
[24]Jadwin v.
[25] 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
[26] New York Times v. Sullivan, 376
[27] See St. Amant v. Thompson, 390
[28] Complainant’s Memorandum of Law at 7.
[29] See, Kennedy v. Voss, 304 N.W.2d 299 (
[30]Jadwin v.
[31] 304 N.W.2d
299 (
[32]
[33]
[34]