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4-6322-17617-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Eric V. Herendeen,
Complainant, vs. Brett Corson, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on
Robert Sturtz,
Attorney at Law, Goldman, Sturtz & Halvorsen, Chartered, 137 North
Broadway,
Brett Corson
(Respondent), Corson Law Offices, LLC,
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.06 by intentionally participating in the preparation or dissemination of
false campaign material that Respondent knew was false or communicated to
others with reckless disregard as to whether it was false?
The panel concludes that the
Complainant has failed to establish by clear and convincing evidence that the
Respondent violated Minn. Stat. § 211B.06, and therefore the Complaint is
dismissed.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. Eric Herendeen is currently the Chief Deputy County
Attorney for
2. From 1997 until
3. In the 2002 general election, Mr. Herendeen and Brett
Corson ran for the position of Fillmore County Attorney. Herendeen was defeated by Corson by a vote of
4,796 (55%) to 3,907 (45%).
4. In December of 2002, Mr. Herendeen resigned from the
Fillmore County Attorney’s Office effective
5. In late 2002 or early 2003, Fillmore County Zoning
Administrator Norm Craig received complaints regarding the storage of
semi-truck trailers on property owned by a Dan Moulton in
6. Upon receiving a zoning complaint, Mr. Craig’s
typical procedure is to contact the offending party and attempt to get them to
correct the problem. Only if the
offending party is resistant to correcting the problem, does Mr. Craig consult
with the Fillmore County Attorney’s Office.[8]
7. At no time while serving as Assistant Fillmore County
Attorney was Mr. Herendeen aware that Mr. Moulton was improperly storing
semi-truck trailers on his property.
Consequently, Mr. Herendeen did not take any action to remove the
trailers or restrict the business.[9]
8. It was not
until early 2004 that Mr. Craig wrote to Mr. Moulton and advised him that the
storage of semi-truck trailers on his property violated
9. By letter
dated
10. In
response to this notice, Mr. Moulton applied for a Rural Home Based Business
permit. Mr. Craig denied Mr. Moulton’s
request for a permit, and Mr. Moulton appealed the denial to the Fillmore
County Board of Adjustment.[13]
11. On April 21, 2005, the Fillmore County Board
of Adjustment upheld Mr. Craig’s decision and denied Mr. Moulton’s appeal by a
vote of 4-0. Mr. Moulton then appealed
the matter to District Court.[14]
12. On
13. Following the settlement, some members of the
Fillmore County Board of Adjustment complained to the Fillmore County Journal that they had not been consulted about the
decision to negotiate a settlement with Mr. Moulton. Likewise, the
14. In late 2005,
Mr. Moulton had approximately 31 semi-truck trailers stored on his property.[17]
15. Mr. Herendeen
first became aware of the trailer truck storage issue shortly after the
settlement between Mr. Moulton and the County was reached in late 2005. During his tenure as an Assistant Fillmore
County Attorney, Mr. Herendeen had no knowledge of any zoning problem
concerning Mr. Moulton’s property.[18]
16. In 2006, Mr.
Corson and Mr. Herendeen were again candidates for the position of Fillmore
County Attorney.
17. On
18. Mr.
Corson responded to Mr. Herendeen’s advertisement with his own campaign advertisement,
which ran in several local newspapers during the week of
My opponent
failed to remove the trailers and restrict the business when he was Assistant
Fillmore County Attorney.[20]
19. The Complainant filed this Complaint with the
Office of Administrative Hearings on
20. On November
7, 2006, Mr. Corson was re-elected as Fillmore County Attorney by a vote of
4,864 (55%) to 3,953 (45%).
21. On November
8, 2006, Administrative Law Judge Bruce Johnson found that there was probable
cause to believe that Mr. Corson violated Minnesota Statutes § 211B.06 as
alleged in the Complaint.[21]
22. This matter
came on for hearing on January 5, 2007, at the Office of Administrative
Hearings. At the close of the
Complainant’s case, the Respondent moved to dismiss the complaint. The panel granted the motion and the
complaint was dismissed.
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. Campaign material is defined to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, …”[22] Respondent’s advertisement is campaign material within the meaning of that statute.
3. Minn. Stat. §
211B.06, subd. 1, provides, in part: “A
person is guilty of a gross misdemeanor who intentionally participates in the
preparation, dissemination … of … campaign material with respect to the
personal or political character or acts of a candidate … that is designed or
tends to elect, injure, promote, or defeat a candidate for nomination or
election to a public office …, that is false, and that the person knows is
false or communicates to others with reckless disregard of whether it is
false.”
4. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[23]
5. The Complainant has failed to demonstrate that the Respondent violated Minn. Stat. § 211B.06 because the evidence is insufficient to prove by clear and convincing evidence that the statement that Mr. Herendeen failed to remove the trailers and restrict Mr. Moulton’s business is false and that Respondent knew it was false or subjectively knew that it was probably false.[24]
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:
1. That the Complaint in this matter is DISMISSED.
2. That the Respondent’s request for attorney’s fees is
denied.
Dated:
January 10, 2007
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/s Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Presiding Administrative Law Judge |
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/s/ Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
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/s/ Carol A. Eckersen |
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CAROL A. ECKERSEN |
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Administrative Law Judge |
MEMORANDUM
Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. 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.
The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard from New York Times v. Sullivan.[25] Based on this standard, the Complainant must show by clear and convincing evidence that the statement is false and that the Respondent either published the statement knowing it was false or published with reckless disregard for its truth or falsity. In Riley v. Jankowski,[26] the Minnesota Court of Appeals interpreted the “reckless disregard” standard stated in Minn. Stat. § 211B.06, subd. 1, as requiring clear and convincing evidence that Respondent made the statement while subjectively believing that the statement was probably false.
As interpreted by
the Minnesota Supreme Court, the statute is directed against false statements
of fact. It is not intended to prevent
criticism of candidates for office or to prevent unfavorable deductions or
inferences derived from a candidate’s conduct.[27] It does not reach criticism which is merely
unfair or unjust. It does reach false
statements of specific facts.[28]
The statement at issue in
this matter is, “My opponent failed to remove the trailers and restrict the
business when he was Assistant Fillmore County Attorney.” The Complainant argued that the statement is
false because it implies that he was aware of the improper storage of the
semi-truck trailers when he was an Assistant County Attorney but failed to do
anything about it. The Complainant maintained
that he had no knowledge of Mr. Moulton’s non-compliance with zoning laws while
he was an Assistant County Attorney, and he pointed out that he left the
The statement in Mr.
Corson’s advertisement does imply that
Mr. Herendeen was aware of the zoning violations occurring on the Moulton
property while he served as an Assistant County Attorney and that he failed to
take action to correct the problem. The
evidence at the hearing, however, established that Mr. Herendeen did not know
that a violation of the zoning laws was occurring. Clearly it was the Respondent’s intent to
suggest that the Complainant had done nothing to correct a controversial zoning
problem, when in fact the problem came to light after the Complainant had left
the Fillmore County Attorney’s Office. To
that extent, the statement is intentionally misleading, incomplete and unfair. However, Minn. Stat. § 211B.06 is directed at
false statements of fact and not against unfavorable implications or inferences
based on fact, even if those inferences are extreme or illogical.[29]
Here, the statement that Mr. Herendeen failed to remove the trailers or restrict Mr. Moulton’s business when he was an Assistant Fillmore County Attorney is not false. Mr. Moulton has been operating his business and storing semi-truck trailers on his property since 1989. Mr. Herendeen was an Assistant Fillmore County Attorney from 1997 until January 16, 2003. It is true that during his tenure as an Assistant Fillmore County Attorney, Mr. Herendeen did not remove the trailers or restrict Mr. Moulton’s business. Although the evidence in the record was sufficient to establish probable cause and to allow Mr. Herendeen to proceed with his case, the evidence presented at the hearing was insufficient to prove by clear and convincing evidence that the statement is a false statement of fact. Accordingly, the Respondent’s motion to dismiss the complaint at the close of the Complainant’s case was granted.
Pursuant to Minn. Stat. § 211B.36, subd. 3, the assigned panel may order a Complainant to pay the Respondent’s reasonable attorney’s fees and costs of the Office of Administrative Hearings if the judge or panel determines the complaint was frivolous. A frivolous claim is one that is without any reasonable basis in law or equity and could not be supported by a good faith argument for a modification or reversal of existing law.[31] Here the complaint was found to state a prima facie violation of Minn. Stat. § 211B.06 and, after a hearing, the Presiding Administrative Law Judge found probable cause to believe a violation occurred. The fact that the Complainant was not able to meet his burden of proving the case by clear and convincing evidence does not render his complaint frivolous. Therefore, Respondent’s request for attorney’s fees is denied.
B.H.J., B.J.H., C.A.E.
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[1] Testimony of
Herendeen.
[2] Testimony of
Herendeen; Ex. D, Affidavit of Opat at ¶ 3; Ex. 33, Supplemental Affidavit of
Craig at ¶ 3.
[3] Testimony of
Herendeen.
[4] Ex. A,
Affidavit of Craig at ¶ 3; Ex. 33, Supplemental Affidavit of Craig at ¶ 3; Ex.
C.; Ex. J.
[5] Ex. 4,
Affidavit of Moulton; Ex. 6.
[6] Ex. 4,
Affidavit of Moulton; Ex. 20, Affidavit of Craig at ¶ 5.
[7] Ex. 20,
Affidavit of Craig at ¶ 7.
[8] Ex. A,
Affidavit of Craig at ¶ 4.
[9] Testimony of
Herendeen.
[10] Ex. A,
Affidavit of Craig at ¶ 5; Ex. 33, Supplemental Affidavit of Craig at ¶ 4.
[11] Ex. 33,
Supplemental Affidavit of Craig at ¶ 4; Ex. E.
[12] Ex. H.
[13] Ex. I.
[14] Ex. J and Ex.
5.
[15] Ex. 20, Affidavit of Craig at ¶¶ 9 and 10; and Ex. J.
[16] Ex. J.
[17] Ex. J.
[18] Testimony of
Herendeen.
[19] Ex. 1.
[20] Ex. B.
[21] See, Herendeen v. Corson, OAH Docket No.
4-6322-17617-CV (Order dated November 8, 2006).
[22] Minn. Stat. §
211B.01, subd. 2.
[23] Minn. Stat. §
211B.32, subd. 4.
[24] See, Riley v. Jankowski, 713 N.W.2d 379
(Minn. App. 2006), rev. denied (
[25] New York Times v. Sullivan, 376
[26] 713 N.W.2d
379 (Minn. Ct. App. 2006), review denied (
[27] Kennedy v. Voss, 304 N.W.2d 299 (
[28] Hawley v. Wallace, 137
[29] Kennedy v. Voss, 304 N.W.2d 299, 300
(Minn.1981).
[30] See, Bundlie v. Christensen, 276 N.W.2d 69,
71 (
[31] Maddox v. Department of Human Services,
400 N.W.2d 136, 139 (