12-6326-16420-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Steven Riley,                           Complainant, vs. Stephen Jankowski, Leonard Jankowski, Lawrence Plack and Sylvia Walsh,                           Respondents.

MEMORANDUM REGARDING APRIL 13, 2005 ORDER ON MOTIONS FOR DISMISSAL AND MOTION TO AMEND COMPLAINT

To: Alain Baudry, Maslon, Edelman, Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; Lori McLaughlin, Wagner, Falconer & Judd, LTD, 3500 IDS Center, 80 S. 8^th Street, Minneapolis, MN 55402; Matthew Haapoja, Trimble & Associates, 10201 Wayzata Boulevard, Suite 130, Minneapolis, MN 55305; Lawrence Plack, 6710 Woodland Trail, Greenfield, MN 55357; and Stephen Jankowski, 8270 Pioneer Trail, Greenfield, MN 55357.

The above-entitled matter came on before the panel of Administrative Law Judges on April 13, 2005, on Respondents’ Motions to Dismiss and Complainant’s Motion to Amend the Complaints.

Alain Baudry, Esq., Maslon, Edelman, Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402, represented the Complainant Steven Riley.  Matthew Haapoja, Esq., Trimble & Associates, 10201 Wayzata Boulevard, Suite 130, Minneapolis, MN 55305, represented the Respondent Stephen Jankowski.  Lori McLaughlin, Esq., Wagner, Falconer & Judd, LTD, 3500 IDS Center, 80 S. 8^th Street, Minneapolis, MN 55402, represented the Respondent Sylvia Walsh; Lawrence Plack, 6710 Woodland Trail, Greenfield, MN 55357, participated without benefit of counsel; and Stephen Jankowski, 8270 Pioneer Trail, Greenfield, MN 55357, appeared on behalf of Respondent Leonard Jankowski.

As set forth in an Order issued on April 13, 2005,       

1.              The Panel DENIED Respondent Leonard Jankowski’s Motion to Dismiss.

2.              The Panel DENIED Respondent Lawrence Plack’s Motion to Dismiss.

3.              The Panel GRANTED Respondent Sylvia Walsh’s Motion to Dismiss.

4.              The Panel DENIED Respondent Walsh’s Request for Attorney’s Fees.

5.              The Panel GRANTED Complainant’s Motion to Amend his Complaint to add a           violation of Minn. Stat. § 211B.04.

 

The reasons for that Order are set forth in the following Memorandum.

 

Dated: April 15, 2005

 

/s/ Steve M. Mihalchick

STEVE M. MIHALCHICK

Presiding Administrative Law Judge

 

 

/s/ Richard C. Luis

RICHARD C. LUIS

Administrative Law Judge

 

 

/s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

 

 

 

MEMORANDUM

The campaign complaint[1] in this matter concerns alleged false statements contained in a flyer that was disseminated along with a packet of documents to residents of Greenfield, Minnesota on or about October 29, 2004.  The flyer stated that then Greenfield Mayor Tom Swanson and Council member Roger Mattila tried to “illegally profit … from their elected positions” by attempting to bid on commercial lots owned by the City.  The flyer contained no disclaimer, but the complete packet of information was delivered in an envelope with Respondent Stephen Jankowski’s name and address in the upper left hand corner.  In addition, the envelope had a sticker on it that read:  “This publication is not circulated on behalf of any candidate or ballot question.”  Stephen Jankowski is the son of Respondent Leonard Jankowski, a successful candidate for Greenfield City Council in the November 2, 2004 election.  When questioned by the Complainant about the material at a January 18, 2005, Greenfield City Council meeting, Leonard Jankowski indicated that he, Lawrence Plack and Sylvia Walsh had all participated in distributing the material. 

Respondents Leonard Jankowski, Lawrence Plack and Sylvia Walsh brought motions to dismiss and the panel heard oral argument by telephone conference on April 13, 2005.  Leonard Jankowski maintains that he misspoke at the council meeting when he said that he, Plack and Walsh had distributed the material at issue.  Leonard Jankowski contends that when the Complainant asked him about the campaign material, he thought the Complainant was referring to campaign flyers he, Plack and Walsh had hand delivered, and not to the packet at issue that was sent by U.S. mail.  Leonard Jankowski submitted an affidavit in support of his motion to dismiss in which he maintains that he had nothing to do with the mailing of the material at issue.  Respondent Walsh also contends that Leonard Jankowski misspoke at the council meeting.  She submitted an affidavit in support of her motion to dismiss in which she denies that she or her campaign volunteers had anything to do with the preparation or dissemination of the campaign material sent by Stephen Jankowski.   Finally, Lawrence Plack submitted an affidavit in which he states that Leonard Jankowski misspoke at the January 18^th City Council meeting.  During the April 13^th motion hearing, however, Plack admitted that he did participate in the preparation of the material at issue.

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.”

As an initial matter, the Panel finds that Respondents’ motions, although labeled as motions to dismiss, are more appropriately treated as ones for summary disposition.  When matters outside the pleadings are presented to be considered, the motion must be reviewed under a summary judgment standard.[2]  In this case, Respondents have attached affidavits and supporting documentation to their motions.  Accordingly, the Panel will review the matter as motions for summary disposition.

Summary disposition is the administrative equivalent of summary judgment.  Summary disposition is appropriate where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law.[3]  The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial branch courts in considering motions for summary disposition regarding contested case matters.[4]  A genuine issue is one that is not sham or frivolous.  A material fact is a fact whose resolution will affect the result or outcome of the case.[5]

The moving party has the initial burden of showing the absence of a genuine issue concerning any material fact.  To successfully resist a motion for summary judgment, the nonmoving party must show that there are specific facts in dispute that have a bearing on the outcome of the case.[6]  A nonmoving party cannot rely on pleadings alone to defeat a summary judgment motion.[7]  The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P. 56.05.[8] 

When considering a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party.[9]  All doubts and factual inferences must be resolved against the moving party.[10]  If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[11]  Summary judgment should only be granted in those instances where there is no dispute of fact and where there exists only one conclusion.[12] 

The panel concludes that there are material fact issues that preclude granting Respondents Plack and Leonard Jankowski’s motions to dismiss.  As stated above, Respondent Plack conceded during the motion hearing that he participated in the preparation of the campaign material.  Given this admission, his motion to dismiss is denied.  As for Leonard Jankowski, while it is possible that he misspoke at the January 18^th council meeting, he did not deny in his affidavit participating in the preparation of the material.  Nor did he submit an affidavit from his son, Stephen Jankowski, affirming that Stephen Jankowski alone prepared and disseminated the material.  In addition, Complainant has identified a witness who claims that Leonard Jankowski told her to watch for the mailing prior to her having received it.  For all of these reasons, Leonard Jankowski’s motion to dismiss is denied.

Respondent Sylvia Walsh maintains that she had nothing to do with the preparation or dissemination of the material at issue.  The statute requires a person to have intentionally participated in the preparation or dissemination of campaign material.  Although Ms. Walsh admits that she was aware that the material was being prepared, the Complainant’s only evidence connecting her to the material is the statement by Leonard Jankowski at the January 18^th City Council meeting.  The panel concludes that, without more, this evidence is insufficient to show intentional participation in the preparation or dissemination of the campaign material and cannot withstand a motion to dismiss.  Accordingly, Respondent Walsh’s motion to dismiss is granted.

The Complainant seeks to amend his complaint to add a violation of Minn. Stat. § 211B.04(d).  Complainant maintains that the disclaimer on the envelope, which stated that the material was not disseminated on behalf of a particular candidate, was false and therefore violated section 211B.04(d).  According to Complainant, the material was in fact disseminated on behalf of the Respondents. 

Minn. Stat. § 211B.04, as amended in 2004, provides in relevant part as follows:

(a) A person who participates in the preparation or dissemination of campaign material other than as provided in section 211B.05, subdivision 1, that does not prominently include the name and address of the person or committee causing the material to be prepared or disseminated in a disclaimer substantially in the form provided in paragraph (b) or (c) is guilty of a misdemeanor. 

(b) Except in cases covered by paragraph (c), the required form of disclaimer is:  "Prepared and paid for by the .......... committee, .........(address)" for material prepared and paid for by a principal campaign committee, or "Prepared and paid for by the .......... committee, .........(address), in support of .........(insert name of candidate or ballot question)" for material prepared and paid for by a person or committee other than a principal campaign committee.

(c) In the case of broadcast media, the required form …

(d) Campaign material that is not circulated on behalf of a particular candidate or ballot question must also include in the disclaimer either that it is “in opposition to .... (insert name of candidate or ballot question …. .)”; or that “this publication is not circulated on behalf of any candidate or ballot question.”  …

If it is proven that the campaign material at issue was distributed on behalf of the Respondents, as the Complainant contends, a violation of Minn. Stat. § 211B.04(b) would be established.  The section requires that campaign material disseminated on behalf of particular candidates include a disclaimer substantially in the form provided in paragraph (b).  Therefore, the panel will allow the Complainant to amend his complaint to add an allegation that the Respondents violated Minn. Stat. § 211B.04(b) by failing to have the appropriate disclaimer on the campaign material.[13] 

S.M.M.  R.C.L.  B.L.N.