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8-6312-17667-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Gary F. Menne,
Complainant, vs. Ted Phillips, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on January 26, 2007, before a panel of three Administrative Law
Judges: Eric L. Lipman (Presiding
Judge), Barbara L. Neilson, and
Gary F. Menne,
Frederic Knaak, Knaak and
Kantrud, P.A.,
NOTICE
This is the final decision in this
case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek
judicial review as provided in
STATEMENT OF ISSUES
Did Respondent violate Minn. Stat. § 211B.07 by threatening
force,
coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, or undue
influence to compel voters to vote for him, or against the Complainant, in the
November 7, 2006, general election?
The panel concludes that the
Complainant has established by a preponderance of the evidence that the
Respondent violated Minnesota Statutes § 211B.07.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. In 2006, three candidates filed for two seats on the
Wyoming City Council: Gary F. Menne, Ted Phillips, and Joe Zerwas. Both Mr. Phillips and Mr. Zerwas were
incumbent candidates. Mr. Phillps and
Mr. Zerwas were first elected to the Wyoming City Council in 2002.[1]
2. Sheldon
Anderson was the incumbent candidate for Mayor of Wyoming. Mr. Anderson ran unopposed in 2006.
3. Prior to the November 7, 2006, general election, Mr.
Phillips prepared a campaign flyer that listed negative “facts” about Mr.
Menne. The heading of the flyer stated,
“THE MANY FACTS ABOUT GARY MENNE.” Under
the heading, Mr. Phillips stated the following:
Fact #1 – Mr.
Menne for three years has NOT paid his water/sewer bill with the City of
Fact #2 – Mr.
Menne has his property newly listed with Welsh Properties for sale. Question? – Doesn’t this show he has NO
commitment to the CITIZEN’S of
Fact #3 –
Attached you will see Mr. Menne’s issues when it comes to doing business as a
person in
NOW you have a
choice – Take down the sign in your yard and tell your neighbors that you NO
longer support Mr. Menne for the facts listed above. The only way to avoid Mr. Menne getting into
office is to vote for the incumbents – ANDERSON – PHILLIPS – ZERWAS. If you don’t remove the sign and still
believe in Mr. Menne than you must believe in cheating the rest of US in the
city and that will not go unnoticed in the future. THANK YOU.[2]
4. Mr. Phillips attached eight sheets to the flyer that
listed judgments and liens filed against Mr. Menne personally or against his
business, Gary F. Menne and Son Inc., as well as UCC filings made by Menne and
Son Inc. with several local banks. Mr.
Phillips believed that Mr. Menne did not deserve election to the Council and
that it was important for the voters to have this information.[3]
5. Mr. Phillips prepared and disseminated the flyer
without the knowledge or approval of Mr. Anderson or Mr. Zerwas.[4]
6. On Saturday, November 4, 2006, Mr. Phillips
placed the flyer in the newspaper boxes of persons who had posted lawn signs in
their yards in support of Mr. Menne’s candidacy. Mr.
Phillips disseminated approximately 90 copies of the flyer.[5]
7. Mr. Phillips did
not include on the flyer any information identifying himself as the
author. He disseminated the flyer and
its attachments anonymously.[6]
8. Mr. Anderson
had a lawn sign in support of Mr. Menne’s candidacy on his front lawn.[7]
9. On Sunday,
November 5, 2006, Mr. Anderson found a copy of the campaign flyer in his newspaper
box. Throughout that day, Mr. Anderson
received numerous telephone calls from
10. Mr. Anderson viewed
the alleged facts in the flyer and the attachments to be “politics,” but he
found the last statement in the flyer to be objectionable. Mr. Anderson read the flyer’s last sentence as
threatening those residents of
11. After he
received the flyer, Mr. Anderson called Mr. Phillips and asked him if he was
responsible for the flyer. Mr. Phillips
admitted that he was responsible for the flyer and he apologized for using Mr. Anderson’s
name on the flyer without first obtaining Mr. Anderson’s permission. Mr. Anderson told Mr. Phillips that he was
disappointed in him.[10]
12. Like Mr. Anderson, Mr. Zerwas supported Gary Menne’s
candidacy and had posted a lawn sign in support of Mr. Menne on his front lawn.[11]
13. Mr. Zerwas
was away from home deer hunting the weekend before the election. On Sunday morning, November 5, 2006, his wife
found the campaign flyer in their newspaper box. Mrs. Zerwas felt threatened by the flyer. She read the flyer to mean that if she did
not remove her lawn sign in support of Mr. Menne, “there would be consequences.” While Mrs. Zerwas is not easily intimidated
and she did not personally feel physically threatened by the flyer, she did worry
that someone might damage their property if the Menne lawn sign was not removed. In addition, she was upset that her husband’s
name was on a flyer that she believed threatened voters.[12]
14. On Sunday,
November 5, 2006, Mrs. Zerwas received several telephone calls from
15. Mr. Zerwas
returned home from his hunting trip on Monday, November 6, 2006. His wife showed him the flyer and told him
about the telephone calls she had received from local residents. Mr. Zerwas interpreted the last paragraph of
the flyer to threaten voters who had lawn signs in support of Mr. Menne. Mr. Zerwas was upset that his name had been
used on the flyer without his permission, and that people assumed that he was
responsible for, or associated with, the flyer.
In addition, he expressed concern that the flyer would confuse voters because
it implied that he supported Mr. Phillip’s candidacy, when in fact he supported
Mr. Menne.[14]
16. Mr. Zerwas called Mr. Anderson about the flyer. Mr. Anderson told Mr. Zerwas that Mr.
Phillips had created the flyer and had put it in the newspaper boxes of homes
that had lawn signs in support of Mr. Menne.[15]
17. On Monday,
November 6, 2006, Mr. Zerwas received several telephone calls from
18. Although Mr.
Zerwas did not feel personally threatened by the flyer, he believed the last
paragraph was intended to scare voters who supported Mr. Menne.[17]
19. Frank Pechaver
is a
20. Howard
Toronto, an elderly
21. There is no
evidence in the record that anyone removed their lawn sign or changed their
vote as a result of having received the campaign flyer.
22. In the November
7, 2006, election for Wyoming City Council, Mr. Zerwas received 1009 votes, Mr.
Menne received 712 votes, and Mr. Phillips received 677 votes.
23. On November
20, 2006, Gary Menne filed this complaint alleging that Mr. Phillips violated
Minnesota Statutes §§ 211B.02 (false claim of support), 211B.04 (improper
disclaimer), 211B.06 (false campaign material) and 211B.07 (undue influence on
voters) in preparing and disseminating the campaign flyer.
24. On November 27, 2006, Presiding
Administrative Law Judge Eric L. Lipman determined that the Complaint set forth
a prima facie violation of Minnesota
Statute § 211B.07, but dismissed the other allegations.
25. Since his
defeat in the general election and the swearing in of the new City Council, Mr.
Phillips has attended and video-taped the Wyoming City Council meetings.[20]
Based upon the foregoing Findings of
Fact, the panel makes the following:
CONCLUSIONS
1. Minn. Stat. § 211B.35 authorizes the panel of
Administrative Law Judges to consider this matter.
2. Minn. Stat. § 211B.07 provides, in part, as follows:
A person may not directly or indirectly use or threaten force,
coercion, violence, restraint, damage, harm, loss, including loss of employment
or economic reprisal, undue influence, or temporal or spiritual injury against
an individual to compel the individual to
vote for or against a candidate or ballot question. * * *
3. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.07 is a preponderance of the evidence.[21]
4. The Complainant has demonstrated that the Respondent threatened coercion, harm, loss, reprisal, or undue influence to compel individuals to vote for him or against Mr. Menne.
5. The violation was committed deliberately, but the threat was vague, diffuse, and had no or minimal impact on the voters. The Respondent shall be fined $600 for the violation.
Based upon the record herein, and for the reasons stated in the following Memorandum, the panel of Administrative Law Judges makes the following:
ORDER
IT IS ORDERED:
That having been found to have violated Minn. Stat. § 211B.07,
Respondent Ted Phillips pay a civil penalty of $600 by March 15, 2007. [22]
Dated: February 9, 2007
|
s/Eric L. Lipman |
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ERIC L. LIPMAN |
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Presiding Administrative Law Judge |
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s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
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s/Jennifer Patterson |
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JENNIFER PATTERSON |
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Administrative Law Judge |
MEMORANDUM
Minnesota Statutes § 211B.07 prohibits undue
influence on voters and provides, in part:
A person may
not directly or indirectly use or threaten force, coercion, violence,
restraint, damage, harm, loss, including loss of employment or economic
reprisal, undue influence, or temporal or spiritual injury against an
individual to compel the individual to
vote for or against a candidate or ballot question. . . .
The
record established that during the weekend before the 2006 general election,
Mr. Phillips placed flyers that he had prepared in the newspaper boxes of
persons who had posted lawn signs in their yards in support of his opponent, Mr.
Menne. The final paragraph of the flyer
stated:
NOW you have a choice – Take down
the sign in your yard and tell your neighbors that you NO longer support Mr.
Menne for the facts listed above. The
only way to avoid Mr. Menne getting into office is to vote for the incumbents –
ANDERSON – PHILLIPS – ZERWAS. If you
don’t remove the sign and still believe in Mr. Menne than you must believe in
cheating the rest of US in the city and that will not go unnoticed in the
future. THANK YOU.[23]
The
issue before the panel is whether the language of Mr. Phillips’ flyer constitutes
a threat of coercion, harm, loss, reprisal, or undue influence made to compel
voters to vote for Mr. Phillips and against Mr. Menne.
Several
witnesses testified that they found the flyer to be threatening and that they
understood the last sentence to mean that if they did not remove their lawn sign,
there would be reprisals.[24] For example, Mr. Perchaver interpreted the
flyer to mean that the incumbent city council members (Anderson, Phillips, and
Zerwas) were watching him and would “come after him” if he did not remove his
Menne lawn sign. According to Mr.
Pechevar, his wife was also intimidated by the flyer and she urged him to
remove the Menne sign from their lawn.
The Respondent,
Mr. Phillips, denied any intent to threaten voters. Mr. Phillips testified that he meant only to
communicate that if Mr. Menne were elected, Mr. Menne’s performance would “not
go unnoticed.”[25] The Respondent contends that his subsequent video-taping
of the City Council meetings supports this interpretation and demonstrates his
efforts to “[hold Mr. Menne] to task to do things the right way.”[26]
The panel
concludes that the Respondent’s purported construction of the flyer is not
plausible. A few points deserve special
emphasis.
First, Mr.
Phillips’ suggested reading of the flyer is at odds with the words that he chose. Not only is the flyer text particularly
hostile to Mr. Menne’s supporters, demanding withdrawal of their lawn signs and
characterizing the holdouts as “cheaters,” none of the words in the flyer
suggest that Mr. Menne is the person that is slated for later scrutiny. Instead, when read in context, it is evident
that the last sentence is directed at the readers of the flyer and that it is
their actions that will not go unnoticed; not the performance of Mr.
Menne. Only by selectively skipping over
whole phrases, can one come to Mr. Phillips’ preferred reading: namely, “if you
elect Mr. Menne, I will watch him.”
Second, the
facts surrounding the distribution of the flyer likewise cut against Mr.
Phillips’ claim that he was merely offering to hold Mr. Menne accountable
during a later City Council term. The
evening arrival of an unsigned and unattributed flyer in the newspaper boxes of
only those who hosted a Gary Menne lawn sign, with the further demand that these
persons publicly renounce their support for the challenger and support the incumbent
office-holders, are not the hallmarks of a public-spirited observer of city
politics.[27]
Third, although
the phrase “if you don’t remove the sign and still believe in Mr. Menne then
you must believe in cheating the rest of US in the city and that will not go
unnoticed in the future,” is imprecise, the panel concludes it is sufficiently
definite to communicate a threat of coercion, harm, loss or reprisal to compel
voters to vote for Mr. Phillips or against Mr. Menne. While the exact nature of the threat was not
clearly stated, the fact that the flyer urged support for the three sitting
members of the Council suggests the possibility that some type of official acts
of reprisal might be taken if the flyer’s directive is not followed.
Fourth,
contrary to the Respondent’s contentions, the statute does not require that the
proscribed threats be separately punishable as crimes before any sanction may
follow. Importantly, Section 211B.07
includes prohibitions that are both broader and different than the conduct that
is proscribed by
Lastly, while
there is no evidence in the record that anyone removed their lawn sign, or
changed their vote, as a result of having received Mr. Phillips’ flyer, such a
showing is not necessary in order to establish a violation of the statute. The panel concludes that the Complainant need
only show that the threat was made for the purpose of compelling individuals to
vote in a particular manner; not that it was ultimately effective. The reason is plain. Minn. Stat. § 211B.07 is meant to safeguard voters,
like Mr. Perchaver, from worrying about what reprisals may follow from their
choice of Council candidates and lawn sign. It does not first require a change of heart.
The
Complainant has established by a preponderance of the evidence that, by
preparing and disseminating the flyer, Mr. Phillips threatened voters in an
attempt to coerce them to vote for him in violation of Minn. Stat. §
211B.07.
The Respondent
also argued that Minn. Stat. § 211B.07 unconstitutionally infringes on his
First Amendment right of free speech. As
noted in the panel’s prior Order denying Respondent’s motion for summary
disposition,[31]
the state may properly regulate and circumscribe categories of speech, such as
“fighting words” or “true threats,” without violating the First Amendment.[32] It appears that the Minnesota Legislature was operating within its rightful police
powers when it enacted Section 211B.07, by punishing speech that threatens
“force, coercion, violence, restraint, damage, harm, loss, including loss of
employment or economic reprisal … [or]
undue influence ….”[33] In any
event, a facial challenge to the constitutionality of the statute is beyond the
scope of this hearing; because such challenges are within the exclusive
province of the judicial branch to resolve.[34] For this reason, the Respondent’s
constitutional claims are duly noted for the record and preserved for possible
appeal.
E.L.L., B.L.N., J.P.
[1] Testimony of
Phillips and J. Zerwas.
[2] Ex. M
(emphasis in original).
[3] Testimony of
Phillips.
[4] Testimony of
[5] Testimony of
Phillips.
[6] Testimony of
Phillips.
[7] Testimony of
[8] Testimony of
[9] Testimony of
[10] Testimony of
[11] Testimony of
J. Zerwas.
[12] Testimony of
L. Zerwas.
[13] Testimony of
L. Zerwas.
[14] Testimony of
J. Zerwas; Ex. B.
[15] Testimony of
J. Zerwas.
[16] Testimony of
J. Zerwas.
[17] Testimony of
J. Zerwas; Ex. B.
[18] Testimony of
Pechaver.
[19] Ex. O.
[20] Testimony of
J. Zerwas and Anderson.
[21] Minn. Stat. §
211B.32, subd. 4.
[22] The check
should be made payable to “Treasurer, State of
[23] Ex. M
(emphasis in original).
[24] Testimony of
L. Zerwas.
[25] Testimony of
T. Phillips.
[26]
[27] Compare, Fritz v, Hanfler, 263 N.W.2d
910, 911-12 (Minn. 1935) (chairman of county emergency relief board’s
statements to voters during campaign that if they did not support him, their
relief payments would end, violated the predecessor statute prohibiting
coercion of voters.)
[28] Compare, e.g., Minn. Stat. §§ 609.27, 609.713 (2006).
[29] See, Fritz v,
Hanfler, 263 N.W.2d at 911 (citing
[30] Compare also, Riley v. Jankowski, 713
N.W.2d 379, 391 (Minn. App. 2006), rev.
denied (
[31] See, Menne v. Phillips, OAH Docket No.
8-6312-17667-CV (Order dated January 23, 2007).
[32] See, Dunham v. Roer, 708 N.W.2d 552, 565 (
[33] Compare, Minn. Stat. § 211B.07 (2006) with Dunham, 708 N.W.2d at 565 ("True threats encompass those
statements where the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular individual or
group of individuals ...” [and a] statute that is narrowly tailored to ban or
regulate unprotected words of conduct, such as “fighting words” or “true
threats” does not implicate the First Amendment ..."); compare also, United States v. Bellrichard, 62 F.3d
1046, 1050 (8th Cir. 1995) (“the First Amendment affords no protection to those
who utter direct threats of force and violence toward other persons”).
[34] See, Neeland v.