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OAH
16-0320-21390-CV |
STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
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Republican Party of Complainant, vs. Thomas Horner, (Thomas)
Horner 2010, and Decision Resources, Ltd., Respondents. |
ORDER DENYING
MOTION FOR RECONSIDERATION |
On June 24, 2010, this matter came on for a probable
cause hearing under Minn. Stat. § 211B.34, before Administrative Law Judge
Manuel J. Cervantes to consider a Complaint filed by the Republican Party of
Minnesota. The Complaint alleged that
the Respondents violated Minn. Stat. §§ 211B.13 and 211B.15 regarding
prohibited corporate contributions.
By Order dated July 1, 2010, Administrative
Law Judge Manuel Cervantes dismissed the Complaint for lack of probable
cause. On July 6, 2010, the Complainant
submitted a petition for reconsideration of Judge Cervantes’s decision.
Tony P. Trimble and Matthew Haapoja,
Attorneys at Law, Trimble & Associates, Ltd, represented the Republican
Party of Minnesota. George Soule,
Attorney at Law, Bowman and Brooke, LLP, represented Respondents Thomas Horner
and Horner 2010. Travis Stottler,
Attorney at Law, represented Respondent Decision Resources, Ltd (DRL).
Based on the record herein, and for the
reasons stated in the following Memorandum the Chief Administrative Law Judge
makes the following:
ORDER
Complainant’s Motion for
Reconsideration is DENIED.
Dated: July 8, 2010
s/Raymond
R. Krause
|
RAYMOND R. KRAUSE Chief Administrative Law
Judge |
On July 1,
2010, the Administrative Law Judge issued an Order dismissing the Complaint in this
matter for lack of probable cause to believe that the Respondents violated Minn. Stat. §§ 211B.13
and 211B.15 as alleged. On
Minn. Stat. § 211B.34,
subd. 3(b), provides that the Chief Administrative
Law Judge must review the petition
for reconsideration within
three business days
and determine whether
the assigned administrative
law judge made a “clear error of law.”
Minn. Stat. § 211B.15, subd. 2, prohibits
corporations from contributing things of monetary value to a candidate or
candidate’s committee to promote or defeat that candidate’s election to
office.
The Complainant alleged that Thomas Horner and
Horner 2010 received prohibited corporate contributions when DRL provided
polling results and data to them at no cost.
Administrative Law Judge Cervantes concluded that the Complainant failed
to establish probable cause to believe DRL provided Horner and Horner 2010 with
a prohibited contribution because the polling data had already been released to
the St. Paul Pioneer Press, and
the data was therefore public. Judge
Cervantes concluded that because the polling data was available, public and
free of charge to anyone upon request, it had no monetary value and the giving
and receiving of the data therefore could not form the basis of a Minn. Stat. §
211B.13 or § 211B.15 violation.
In its Petition for Reconsideration, Complainant
argues that the Dismissal Order is clearly erroneous as a matter of law because
Administrative Law Judge Cervantes misread Federal Election Commission (FEC)
regulations and a 1986 State of
The Chief Administrative Law Judge disagrees with
Complainant’s contention that Administrative Law Judge Cervantes committed
clear error in his interpretation of these sources. The FEC regulation at issue provides that the
acceptance of poll results that “have been made public” is not a contribution
in-kind.[1] Similarly, the California Advisory Opinion
provides that the provision of survey results to a candidate would constitute a
prohibited contribution, but that “in contrast, if [the survey corporation]
instead were to make the results available to the public, such as by…providing
the results to a newspaper,…[it] would not be considered a contribution.”[2]
Judge Cervantes, relying in part on these sources,
concluded that once DRL released the polling results to the newspaper reporter,
the polling data became “public” and the data thereafter lacked “monetary
value” and did not constitute an in-kind contribution. That conclusion was not clearly in
error. By the time DRL provided the poll
results to Respondents, the results had already been given to a newspaper and a
number of hours later the newspaper published an article that included the poll
results. The information was in the
public domain when it was given to Respondents.
Complainant argues that according to the California
Advisory Opinion, Respondents violated Minn. Stat. §§ 211B.13 and 211B.15
because Horner received the results before they were published in the
newspaper. The Opinion, however, does
not require publication of the results.
It specifically states that the provision of the results to a candidate
after the results have been “provided to” the newspaper would not constitute a
prohibited contribution. A finding of
“clear error of law” is a significant burden that Complainants have not
overcome. Administrative Law Judge
Cervantes did not commit clear error of law in his interpretation of the FEC
regulation or the California Advisory Opinion, and he did not make a clear
error of law when he dismissed the Complaint.
The motion for reconsideration is denied.
R. R. K.