6-6381-16267-CV

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

 

Michael D. Johnson,                                          Complainant,   vs.   Grant Residents Who Want to Save Grant, Art and Joyce Welander, Kim Linner, Tim Gangnon, Nancy Levitz, Brad Hindseth, Kevin Fernandez, Gary Erichson, and Tom Carr,                                          Respondents.

ORDER

 

The above-entitled matter came on for hearing before a three-judge panel comprised of Administrative Law Judges Bruce H. Johnson (Presiding Judge), Steve M.  Mihalchick, and Barbara L. Neilson on January 18, 2005, at 10:00 a.m. at the Office of Administrative Hearings.  At the close of Complainant’s case-in-chief, Respondents Art and Joyce Welander moved for a Directed Verdict.  The panel allowed and received written submissions on the motion.  In his letter brief dated January 31, 2005, Complainant made a motion to add seven respondents to the complaint.  The panel invited and received written submissions from the original named parties as to the procedural implications of adding new parties to the Complaint.   

Jay Benanav, Weinblatt & Gaylord PLC, Suite 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, MN 55101, represents Complainant Michael D. Johnson. 

Christopher K. Wachtler, Collins, Buckley, Sauntry & Haugh, PLLP, West 1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 represents Respondents Art and Joyce Welander.

Based upon all the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the panel makes the following:

ORDER

1.               The motion to add Kim Linner, Tim Gangnon, Nancy Levitz, Brad Hindseth, Kevin Fernandez, Gary Erichson, and Tom Carr as Respondents to the Complaint is GRANTED, and those individuals are substituted for previously unnamed respondents as shown in the above-caption.[1]  Enclosed with this Order is a copy of the Complaint and a Notice of Appearance form for each of the named individuals.

2.               The motion for a directed verdict is DENIED.  There is sufficient evidence in the record to allow the case to proceed to a further hearing date.  

3.               All parties shall appear for a prehearing conference at the Office of Administrative Hearings on Wednesday, March 9, 2005, at 9:30 a.m.   The Office is located at 100 Washington Avenue South, Suite 1700, Minneapolis, MN, 55401.

 

Dated this 22^nd day of February, 2005.

 

                                                            /s/ Bruce H. Johnson

_______________________

BRUCE H. JOHNSON

Administrative Law Judge

/s/ Steve M. Mihalchick

_______________________

STEVE M. MIHALCHICK

Administrative Law Judge

/s/ Barbara L. Neilson

_______________________

BARBARA L. NEILSON

Administrative Law Judge

 

MEMORANDUM

The test for a directed verdict[2] is not significantly different from the test for summary judgment.[3]  A court may grant a motion for a directed verdict “only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence, or where (2) it would be contrary to the law applicable to the case.”[4]  The evidence must be viewed in a light most favorable to the adverse party.[5]  Similarly, 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.[6]  The moving party has the initial burden of showing the absence of a genuine issue concerning any material fact.  If the evidence is viewed in a light most favorable to the Complainant, genuine issues of material fact remain to be resolved with respect to the allegations which Judge Klein found to be prima facie violations of provisions of Chapter 211B.  

Standing Issue

            With regard to each of the false statement claims, Respondents Art and Joyce Welander argue that Complainant lacks standing to bring these claims.[7]  Specifically, Respondents assert that the material at issue is not campaign material that was distributed “with respect to the personal or political character or acts” of Complainant under Minn. Stat. § 211B.06, subd. 1, because Complainant was not a City Council member and was not involved in the activities referred to by the written material.  In the same vein, Respondents suggest that Complainant did not suffer any injury as a result of the printed material, such as monetary damage or loss of the election.[8]  According to Respondents, only City Council members Vanzwol, Schwarze, and Kraemer have standing to file a complaint under these facts. 

 

          Chapter 211B does not limit who may file a complaint and it does not require an injury in fact.  This suggests that the Legislature favors a broad interpretation of standing.  Chapter 211B protects the election process and does not focus exclusively on the individuals involved in the process.  Accordingly, Complainant has standing to allege violations of Chapter 211B.   

 

             

B.H.J., S.M.M., B.L.N.