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4-0320-21311-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Dennis L. Macklin, Complainant, vs. Sean Nienow, Respondent. |
ORDER
FINDING NO
PRIMA FACIE VIOLATION AND DISMISSING COMPLAINT |
On May 10, 2010, Dennis L. Macklin filed a Complaint with the Office of Administrative Hearings alleging Sean Nienow, a non-incumbent candidate for State Senate District 17, violated Minn. Stat. § 211B.06 by using the terms “reelect” and “your state senator” in his campaign material.
The Chief
Administrative Law Judge assigned this matter to the undersigned Administrative
Law Judge on May 10, 2010, pursuant to Minn. Stat. § 211B.33. A copy of the Complaint and attachments were
sent by
After reviewing the Complaint and attachments, the Administrative Law Judge finds that the Complaint does not state a prima facie violation of Minn. Stat. § 211B.06.
Based upon the Complaint and the supporting filings and for the reasons set out in the attached Memorandum,
IT IS ORDERED:
That the Complaint filed by Dennis Macklin against Sean Nienow is DISMISSED.
Dated: May 12, 2010
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s/Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Administrative Law Judge |
Under Minn. Stat. § 211B.36, subd. 5, this order is the final decision in this matter and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat. § § 14.63 to 14.69.
MEMORANDUM
Respondent Sean Nienow served one term (2003-2007)
as State Senator for District 17. He was
defeated for re-election in 2006 and is now seeking reelection in the general
election in November 2010. According to
the Complaint, Respondent has disseminated campaign material and merchandise
that states “Re-elect Senator Sean Nienow,” and “Sean Nienow Your State
Senator.” The Complaint alleges that
Respondent’s use of the terms “re-elect” and “your state senator” violates
Minn. Stat. § 211B.06. According to the
Complainant, only incumbents may use the term “reelect.”
Minn. Stat. § 211B.03 specifically governs
the use of the word “reelect” in campaign material. It provides as follows:
A person or candidate may not, in the event of redistricting, use the term "reelect" in a campaign for elective office unless the candidate is the incumbent of that office and the office represents any part of the new district. [Emphasis supplied.]
By its terms Minn. Stat. § 211B.03 only prohibits the use
of the term “reelect” by candidates for offices in new districts that have been
created as a result of redistricting. It
does not prohibit or restrict the use of the term “reelect’ by candidates for
any other offices or in any other situations.
The Complaint alleges that Mr. Anderson’s use
of the term “reelect” violates Minn. Stat. § 211B.06, subd. 1, which
provides:
A person is guilty of a gross
misdemeanor who intentionally participates in 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.
The Complaint alleges that because Mr.
Anderson is not the incumbent, his use of the term “reelect” with respect to
his candidacy for office in the current election, is a false statement within
the meaning of Minn. Stat. § 211B.06.
The dictionary defines “reelect” simply as
“to elect again.”[1] Although
the word “reelect” is typically used to refer to a person who currently holds
the office, the definition is broad enough to refer both to the incumbent and
to a person who once held the office, left the office, and later seeks election
to that office again. Because Respondent
once held the office, his use of the word “reelect” on his campaign material
does not render the material false within the meaning of Minn. Stat. §
211B.06. There is nothing false about Respondent
asking voters to “re-elect” him (or elect him again) to his former Senate
seat. The Minnesota Supreme Court
has observed that the statute is “directed against the evil of making false
statements of fact.”[2] It does not prohibit inferences or
implications, even if misleading. In the
ALJ’s view, Nienow’s use of the word “re-elect” in his campaign material is sufficiently
ambiguous to make that statement something less than “clearly false” and
therefore not actionable.[3]
Likewise, the phrase “your state senator” is
not factually false within the meaning of § 211B.06. The statement that must be proved
false is not necessarily the literal phrase published but rather what a
reasonable reader would have understood the author to have said.[4] Here, reasonable readers would not understand
Respondent to be holding himself out as their current state senator. Rather, it is clear that Respondent’s signage
and merchandise is campaign material and that Respondent is running for the
position of state senator.[5] The phrase “Sean Nienow Your State Senator”
is not a false statement of fact.
The Administrative Law Judge concludes that the Complainant has failed to state a prima facie violation of Minn. Stat. § 211B.06. The Complaint is therefore dismissed.
B.
H. J.
[1] See Merriam-Webster Online Dictionary (2010 ed.) and American Heritage Dictionary (2nd ed. 1991).
[2] Kennedy v. Voss, 304 N.W.2d 299, 300 (
[3] See Maloney v. Oman, OAH Docket No. 4-6349-17443-CV, Aug. 11, 2006 (dismissing the allegation that respondent violated § 211B.06 by using the term “re-elect” in his campaign posters to imply that he was the current county attorney); Maloney v. Anderson, OAH Docket No. 3-0320-17444-CV, Aug. 11, 2006 (dismissing the allegation that respondent violated § 211B.06 by using the term “re-elect” in his campaign material to imply that he was the current state representative).
[4]
Jadwin v. Minneapolis Star and Tribune,
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
[5] See Behrens v. Will Rossbach & Committee,
OAH Docket No. 12-6361-17183-CV, Mar. 24, 2006 (dismissing allegation that the
statement “Will Rossbach Mayor of