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48-0325-21720-CV |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Roy Henry, Sr., Complainant, vs. Mayor Andrew Kaufmann and City of Respondent. |
ORDER
FINDING NO
PRIMA FACIE VIOLATION AND DISMISSING COMPLAINT |
On November 22,
2010, Roy Henry, Sr. filed a Complaint with the Office of Administrative
Hearings alleging that Andrew Kaufmann, Mayor of the City of
The Chief
Administrative Law Judge assigned this matter to the undersigned Administrative
Law Judge on November 22, 2010, pursuant to Minn. Stat. § 211B.33. A copy of the Complaint was sent by
After reviewing the Complaint and the attached documents, and for the reasons set out in the attached Memorandum, the Administrative Law Judge finds that the Complaint fails to set forth a prima facie violation of Minn. Stat. § 211B.06.
ORDER
IT IS ORDERED:
That the Complaint filed by Roy Henry, Sr. against Mayor
Andrew Kaufmann and the City of
Dated: November _29th_, 2010
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/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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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
The Respondent, Andrew
Kaufmann, is the current Mayor of the City of
The Complaint alleges
that Mayor Kaufmann violated fair campaign practices laws (Minnesota Statutes
Chapter 211B) by using the City of
The Complainant failed to identify what provision of Minnesota Statutes Chapter 211B he believes Mayor Kaufmann violated by including these statements in the newsletter and on the website, but the Complainant did include a copy of Minn. Stat. § 211B.06. Pursuant to Minn. Stat. § 211B.32, subd. 3, the complaint must detail the factual basis for the claim that a violation of law has occurred on a form prescribed by the Office of Administrative Hearings. The complaint form requires complainants to “give the statutory cite to the part of Minnesota Statutes Chapter 211A or 211B that [they] believe has been violated.” Minnesota Statues Chapter 211A governs campaign financial reporting laws for local and municipal candidates.
Even though the Complainant did not cite a particular provision of Chapter 211B on the complaint form, the Administrative Law Judge will analyze the claim under Minn. Stat. § 211B.06, because the Complainant attached the language of that section to the Complaint. Minn. Stat. § 211B.06 provides in relevant part:
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.
Campaign material is “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election.”[2]
In Kennedy v. Voss,[3] the Minnesota Supreme Court observed that the statute is directed against the evil of making false statements of fact and not against unfavorable deductions, or inferences based on fact - even if the inferences are “extreme and illogical.”[4] The Court pointed out that the public is protected from such extreme and illogical inferences by the ability of other speakers to rebut these claims during the campaign process.[5] In addition, 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.[6]
The Administrative Law Judge concludes that both of the statements that Complainant highlighted are statements of opinion and are not actionable under Section 211B.06. A reasonable reader would understand these statements to be opinions or inferences regarding the current make-up of the City Council and how it affects the future of Montrose. As to the quote regarding incivility, a reasonable person would understand the statement to be an opinion about the effect of negative campaigns on voters and the community. The Complainant cannot establish that these statements are demonstrably false statements of fact. Under the statute, it is the Complainant’s burden to demonstrate that the statements are false; not the Respondent’s burden to show that his statements are beyond dispute.[7] In addition, the statements are not statements about the personal or political character or acts of any identified candidate. The mayor may have been referring to working with the entire council and city staff. Inferences and personal knowledge of certain facts are required to interpret the statements as Complainant does.
The Complainant has failed to allege a prima facie violation of Minn. Stat. § 211B.06 with respect to the identified statements and these allegations are dismissed.
S. M.
M.
[1] See, 2010 election results from the Minnesota Secretary of State’s website.
[2] Minn. Stat. § 211B.01, subd. 2.
[3]
304 N.W.2d 299 (
[4]
[5]
[6]
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
[7] See, Hill v. Notch, OAH Docket No. 8-6326-17585-CV.