15-6326-16963-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

F. Clayton Tyler,

                                           Complainant,

vs.

 

Natalie Johnson Lee and

Booker T. Hodges,

                                           Respondents.

 

 

ORDER OF DISMISSAL

On November 10, 2005, F. Clayton Tyler filed a Complaint with the Office of Administrative Hearings alleging violations of Minn. Stat. §§ 211B.02 and 211B.04 by Natalie Johnson Lee and Booker T. Hodges.      

The Chief Administrative Law Judge assigned this matter to the undersigned Administrative Law Judge on November 10, 2005, pursuant to Minn. Stat. § 211B.33.  A copy of the Complaint and attachments were sent by United States mail and by facsimile transmission to the Respondents on November 10, 2005. 

After reviewing the Complaint and attachments, the Administrative Law Judge finds that the Complaint does not state prima facie violations of Minn. Stat. §§ 211B.02 or 211B.04.

Based upon the Complaint and the supporting filings and for the reasons set out in the attached Memorandum,

IT IS ORDERED:

That the Complaint filed by F. Clayton Tyler against Natalie Johnson Lee and Booker T. Hodges is DISMISSED.

 

 

Dated: November 15, 2005

/s/ Beverley Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

 

 

 

 

NOTICE

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

Peter McLaughlin, Natalie Johnson Lee, and Booker T. Hodges IV were all candidates for Minneapolis City offices in the November 8, 2005 election.  Mr. McLaughlin was a candidate for Mayor of Minneapolis, Ms. Johnson Lee was a candidate for 5th Ward City Council, and Mr. Hodges was a candidate for the Minneapolis Park Board District 2.  The Complaint alleges that on or before November 8, 2005, campaign material was distributed in North Minneapolis by “an unknown source” on behalf of Natalie Johnson Lee and Booker T. Hodges.  The campaign material is in the form of a card approximately 5” x 6.5”.  Running horizontally at the top of the card is the following statement: “VOTE NOVEMBER 8th for the VERY BEST candidates for NORTH MINNEAPOLIS.”  Underneath the statement are photographs of Peter McLaughlin, Natalie Johnson, and Booker T. Hodges with their names and the offices sought identified.  Along side each photograph is a box with a checkmark resembling a ballot.  At the bottom of the card in smaller print is the following disclaimer: “Paid for by North Minneapolis Residents tired of getting no resources for our neighborhoods!” 

The Complaint maintains that the campaign material does not have a disclaimer in the form required by Minn. Stat. § 211B.04.  However, the Complainant has alleged no facts to support his belief that that Respondents are somehow connected to the North Minneapolis residents group identified in the disclaimer and that Respondents were involved in the preparation or dissemination of this campaign material.  Without any alleged facts linking the Respondents to the preparation and dissemination of the campaign material, the Administrative Law Judge concludes that the complaint fails to identify a prima facie violation of the disclaimer requirement in Minn. Stat. § 211B.04.  Although the lack of an address in the disclaimer would be sufficient to show a prima facie violation of Minn. Stat. § 211B.04 on the part of the “North Minneapolis Residents” group, without any alleged facts that the Respondents were responsible in some way for the preparation or dissemination of the material beyond the Complainant’s belief, the Administrative Law Judge cannot find a prima facie violation of section 211B.04 on the part of the Respondents.

In addition, the Complaint alleges that by picturing the three candidates together, the material falsely implies that Natalie Johnson Lee and Booker T. Hodges IV had the support or endorsement of Peter McLaughlin in violation of Minn. Stat. § 211B.02.  The Complainant contends that “Natalie Johnson Lee or Booker T. Hodges, either jointly or individually, caused the piece to be disseminated without Peter McLaughlin’s consent.” 


Minn. Stat. § 211B.02 provides as follows:

211B.02  False Claim of Support.  

A person or candidate may not knowingly make, directly or indirectly, a false claim stating or implying that a candidate or ballot question has the support or endorsement of a major political party or party unit or of an organization.  A person or candidate may not state in written campaign material that the candidate or ballot question has the support or endorsement of an individual without first getting written permission from the individual to do so.

The first sentence of this statute prohibits a candidate from falsely stating or implying that she or he has the endorsement or support of a “major political party or party unit or of an organization.”  The Minnesota Supreme Court has construed the words “political party or unit” to mean only organizational units of the party and not individuals.[1]  The campaign material at issue does not falsely state or imply that Respondents have the support or endorsement of a major political party or party unit or organization.  Thus, the first sentence of section 211B.02 does not apply here. 

The second sentence of the statute prohibits a candidate from “stating in written campaign material” that he or she has the support or endorsement of an individual without first getting permission from the individual to do so.  Nowhere in the written campaign material at issue does it state that Ms. Johnson Lee or Mr. Hodges have Mr. McLaughlin’s support.  Instead, the card states only that the three are “the very best candidates for North Minneapolis.”  Moreover, because the material explicitly states that it was distributed by a North Minneapolis residents’ organization, it is highly doubtful that the material even implies that Respondents have Mr. McLaughlin’s support.  Rather, the material appears to simply reflect the opinion of a third-party neighborhood group that McLaughlin, Johnson Lee, and Hodges are the best candidates for North Minneapolis. 

According to the canons of construction applicable to Minnesota statutes, words and phrases are generally construed “according to their common and approved usage.”[2]  The common definition of the word “state” is “to set forth in words.”[3]  In contrast, the word “imply” is commonly defined to mean “to indicate by inference, association, or necessary consequence rather than by direct statement.”[4]  The Administrative Law Judge concludes that the second sentence of section 211B.02 requires that the alleged false support or endorsement of an individual be based on an explicit written statement and not merely an implication.[5]

The fact that the first sentence of section 211B.02 prohibits candidates from falsely stating or implying political party endorsements also supports the conclusion that the Legislature intentionally chose to exclude implications of support when it came to the individual endorsements addressed in the second sentence of 211B.02.  A basic rule of statutory construction is that the express mention of one thing in a statute implies the exclusion of another.[6]  Or, to state it another way, to “include one thing implies the exclusion of the other.”[7]  The Legislature could have easily written the second sentence of the statute to prohibit candidates from falsely stating or implying in written campaign material that the candidate had an individual’s support or endorsement, but it did not do so. 

Even if the Complainant were able to show that the Respondents were in some way responsible for preparing and disseminating the material, a false implication of support by an individual is not sufficient to show a violation of section 211B.02.   Here the facts alleged in the complaint suggest at best that a neighborhood organization may have implied that a candidate has another candidate’s support.  This simply is not enough to establish a prima facie violation of Minn. Stat. § 211B.02.

The Complaint must be dismissed because it fails to allege prima facie violations of Minn. Stat. §§ 211B.02 and 211B.04 by Respondents.

B.J.H.


[1] Matter of Contest of General Election [Graves v. Meland], 264 N.W.2d 401, 404 (discussing Minn. Stat. § 210A.02, predecessor to Minn. Stat. § 211B.02).

[2] Minn. Stat. § 645.08(1).

[3] American Heritage Dictionary 1327 (3rd ed. 1993).

[4] Merriam-Webster Online, www.m-w.com.

[5] See In the Matter of the Contest of General Election [Graves v. Meland], 264 N.W.2d 401, 403 (Minn. 1978);  Anderson v. Hauser for 8th Ward Volunteer Committee, OAH Docket No. 11-6326-16855 (Dismissal Order dated September 20, 2005).

[6] See Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491 (Minn. 1984).

[7] Black’s Law Dictionary 620 (8th ed. 2004) (defining the textual cannon expressio unius est exclusio alterius).