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15-0325-21667-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Robyn West, Complainant, vs. Mike Bourke, Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Robyn West and Mike Bourke
On November 1, 2010, Robyn West filed a Complaint with the Office of Administrative Hearings alleging that Mike Bourke violated Minn. Stat. § 211B.06. 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 9:30 p.m. on November 5, 2010. The hearing will be held by call-in telephone conference. You must call: 1-888-742-5095 at that time. Follow the directions and enter the numeric pass code “2494407275” when asked for the meeting number.[1] The probable cause hearing will be conducted pursuant to Minn. Stat. § 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 faxed to Judge Beverly Jones Heydinger at 651-361-7936.
At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss the complaint based upon 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 Minn. Stat. § 211B.35. If the presiding 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 Minn. Stat. § 211B.34, subd. 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 3, 2010
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s/Beverly
Jones Heydinger |
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
Complainant Robyn West is an Anoka County Commissioner
Minnesota Statutes § 211B.06 prohibits the preparation and dissemination of false campaign material with respect to the personal or political character or acts of a candidate. 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. Campaign material is “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election.”[2]
As interpreted by the Minnesota Supreme Court, Section 211B.06 is directed against false statements of specific facts.[3] It does not prohibit inferences or implications, even if misleading. However, 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]
To set forth a prima facie case that entitles a party to a hearing, the party must either submit evidence or allege facts that, if unchallenged or accepted as true, would be sufficient to prove a violation of chapter 211A or 211B.[5] For purposes of a prima facie determination, the tribunal must accept the facts alleged as true and the allegations do not need independent substantiation.[6] A complaint must be dismissed if it does not include evidence or allege facts that, if accepted as true, would be sufficient to prove a violation of chapter 211A or 211B.[7]
The Administrative Law Judge finds that the Complainant has
alleged sufficient facts to support finding a prima facie violation of Minn. Stat. § 211B.06. According to
B. J. H.
[1] In
the event that you have trouble connecting to the call, please contact Nancy
Hansen at 651-361-7874 or
[2]
[3]
Kennedy v. Voss, 304 N.W.2d 299, 300
(
[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]
Barry, et al., v. St. Anthony-New
Brighton Independent School District, et
al., 781 N.W.2d 898, 902 (
[6]
[7]