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15-0325-21158-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Douglas W. Erickson, Complainant, vs. David Fazio and Education Respondents. |
NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATION |
TO: Parties
On February 24, 2010, Douglas Erickson filed a Campaign Complaint with the Office of Administrative Hearings alleging that David Fazio and Education Minnesota Local 1406 violated Minnesota Statutes § 211B.06 by preparing and disseminating false campaign material relating to Independent School District 2142’s bond referendum election that occurred on December 8, 2009. 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 as against Education Minnesota Local 1406. However, the Complaint fails to allege a prima facie violation of Minn. Stat. § 211B.06 as against David Fazio and that allegation is dismissed. This determination is described in more detail in the attached Memorandum.
THEREFORE, IT IS HEREBY ORDERED AND NOTICE IS HEREBY GIVEN
that this matter will be scheduled for a telephone prehearing conference and an
evidentiary hearing, to be held at the Office of Administrative Hearings, 600
North Robert Street, St. Paul,
Pursuant to Minn. Stat. § 211B.35, the evidentiary hearing must be held within 90 days of the date the complaint was filed.
You will be notified of the dates and times of both the prehearing conference and evidentiary hearing, and the three judges assigned to hear this matter, within approximately two weeks of the date of this Order. The evidentiary hearing will be conducted pursuant to Minnesota Statutes § 211B.35. Information about the evidentiary hearing procedures and copies of state statutes may be obtained online at www.oah.state.mn.us and www.revisor.leg.state.mn.us.
At the evidentiary hearing, all parties have the right to be represented by legal counsel, by themselves, or by a person of their choice if 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 Judges. Parties should bring with them all evidence bearing on the case with copies for the Administrative Law Judges and the opposing party.
After the evidentiary hearing, the Administrative Law Judges may dismiss the complaint, issue a reprimand, or impose a civil penalty of up to $5,000. The panel may also refer the complaint to the appropriate county attorney for criminal prosecution. A party aggrieved by the decision of the panel is entitled to judicial review of the decision as provided in Minn. Stat. §§ 14.63 to 14.69.
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:
February 26, 2010
/s/
Beverly Jones Heydinger
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
This
Campaign Complaint concerns the December 8, 2009, special election on the
The advertisement encouraged voters to vote in favor of the bond referendum and stated, in part, as follows:
SAVE OUR SCHOOLS!
Vote YES for lower taxes!
Vote YES for our schools!
Vote YES for our community!
Vote yes for the passing of the referendum
On December 8, 2009
A
disclaimer at the bottom of the advertisement states that the ad was “paid for
by EdMN Local 1406” and “designed by Rosa Goerdt,
The
Complainant argues that, contrary to the statement in the advertisement,
passage of the school bond referendum would increase residents’ property taxes,
not lower them. In support of his claim,
the Complainant attached to the Complaint a copy of the sample ballot prepared
by the
Minnesota Statutes § 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.
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.[1] 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.[2] 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.[3]
To prove a violation at the hearing, the Complainant must show that the statement is substantively false and that the person or persons who prepared, disseminated or broadcasted the advertisement did so knowing it was false or communicated it with reckless disregard of whether it was 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.[4] Based on this standard, the Complainant has the burden to prove by clear and convincing evidence that the Respondent 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 the 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.[5]
To allege a prima facie violation, the Complainant must allege sufficient facts to show that a violation of law has occurred.[6] “Prima facie” means “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.”[7] “Prima facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.”[8] 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 sufficient facts to support finding a prima facie violation of Minn. Stat. § 211B.06 as against Education Minnesota Local 1406. The teachers’ union is identified on the advertisement as having paid for the advertisement. The Complainant, however, has failed to allege a sufficient factual basis to support finding a prima facie violation of Minn. Stat. § 211B.06 on the part of David Fazio. The Complainant failed to identify the named individual Respondent and failed to detail what role he played in this matter. Because the Complaint fails to allege any facts to support an allegation that Mr. Fazio participated in the preparation or dissemination of the advertisement knowing it was false or with reckless disregard of its falsity, the Complaint as against him is dismissed.
The allegation against Education Minnesota Local 1406 will proceed to a prehearing conference and evidentiary hearing to be scheduled in the near future.
B.J.H.
[1]
Kennedy v. Voss, 304 N.W.2d 299 (
[2]Jadwin v.
[3]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
[4] New York Times v. Sullivan, 376
[5] St. Amant v. Thompson, 390
[6]
[7] Black’s Law Dictionary 1228 (8th ed. 2004).
[8]