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11-6381-19135-CV |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
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Stev Stegner, Complainant, vs.
Terance Smith, Andy Meyer, Dawn Nelson, Anne Gabriel, Janice Ochs, John Doe, and Mary Roe, Respondents.
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ORDER ON REQUEST FOR ATTORNEY’S FEES |
On August 1, 2007, Stev Stegner filed a Complaint with the Office of Administrative Hearings alleging that the Respondents violated Minnesota Statutes §§ 211B.06 (false campaign material) and 211B.07 (undue influence on voters). The Complaint also alleged that, as a result of these violations, Respondent Terance Smith engaged in conduct that “would have required forfeiture of municipal office” under Minnesota Statutes § 211B.17.
By Order dated August 3, 2007, Administrative Law Judge Barbara L. Neilson dismissed the Complaint in its entirety. On August 10, 2007, counsel for Respondent Anne Gabriel submitted a written request for attorney’s fees and costs, maintaining that Mr. Stegner’s complaint was frivolous. Counsel for Mr. Stegner filed a response to the request on August 10, 2007.
Christopher K. Wachtler, Attorney at Law, Collins, Buckley, Sauntry & Haugh, PLLP, West 1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379, represented Respondent Anne Gabriel. Dale G. Swanson, Attorney at Law, 407 West Broadway Avenue, Forest Lake, MN 55025, represented Complainant Stev Stegner.
Based upon the Complaint and the supporting filings and for the reasons set out in the attached Memorandum,
IT IS ORDERED:
That Respondent Anne Gabriel’s request for an award of attorney’s fees and costs in this matter is DENIED.
Dated: August 17, 2007
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
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
On August 1, 2007, Stev Stegner, the current mayor of the City of Forest Lake, filed a Complaint with the Office of Administrative Hearings alleging that the Respondents violated Minnesota Statutes §§ 211B.06 (false campaign material) and 211B.07 (undue influence on voters). The Complaint alleged that during the course of the 2006 mayoral campaign, the Respondents subjected Mr. Stegner to false attacks on his personal and political character. Specifically, the Complaint alleged that several of the Respondents told persons that Mr. Stegner was Muslim, associated with Muslim terrorists, and preyed on underage Muslim girls. The Complainant asserted that at least one Respondent used photographs taken of Mr. Stegner eating at a Middle Eastern restaurant to support her false accusations. The Complaint further alleged that had Respondent Terance Smith been successful in his campaign to be re-elected mayor, he would have been required to forfeit his municipal office on the basis of his involvement with these violations under Minnesota Statutes § 211B.17.
By
Order dated August 3, 2007, Administrative Law Judge Barbara L. Neilson determined
that the Complaint failed to state a prima facie violation of Minn. Stat. §§
211B.06, 211B.07 or 211B.17, and dismissed the Complaint in its entirety. The Administrative
Law Judge found that the Complainant’s allegations could not form the basis of
a false campaign material claim under Minn. Stat.
§ 211B.06 because oral statements fall outside of the definition of “campaign
material.” In addition, while noting that the Respondents’ alleged oral
statements were reprehensible and played on people’s generalized fear of
terrorism, the ALJ found that the Complaint failed to allege that any of the
Respondents used or threatened force, violence, or harm to compel individuals
to vote against Mr. Stegner in violation of Minn. Stat. § 211B.07. And
finally, the ALJ found Minn. Stat. § 211B.17 to be inapplicable given that Respondent
Smith lost the election and had not been found “guilty” of violating chapter
211B.
Respondent Gabriel argues that Mr. Stegner’s complaint was frivolous and that she is entitled to her attorney’s fees. Pursuant to Minn. Stat. § 211B.36, subd. 3, the assigned Administrative Law Judge may order a Complainant to pay the Respondent’s reasonable attorney’s fees and costs of the Office of Administrative Hearings if the judge 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.[1] Minnesota Rules of General Practice 9.06(b)(3) defines “frivolous litigant” to include:
A person who institutes and maintains a claim that is not well grounded in fact and not warranted by existing law … or that is interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigating the claim.
Counsel for Respondent Gabriel argues that the Complainant and/or his attorney failed to review chapter 211B and previous OAH decisions before filing the complaint in this matter. Had they done so, Ms. Gabriel maintains they would have easily learned that the definition of campaign material is limited to written and arguably visual material. For these reasons, counsel for Respondent Gabriel requests that he be allowed to submit billing records for fees incurred by his client, and that the Complainant be ordered to reimburse his client for those fees.
In response to Respondent Gabriel’s request for attorney’s fees, counsel for the Complainant restates his allegations in the Complaint. He further argues that because Respondent Meyer’s false oral statements described and accompanied the photographs, they sufficiently transformed the photographs into false “campaign material.” He also asserts that the Respondents’ alleged false statements concerning Mr. Stegner’s association with Muslim terrorists were sufficiently threatening to voters to form the basis of a prima facie violation of Minn. Stat. § 211B.07.
The Administrative Law Judge concludes that the Complaint, while insufficient to support prima facie violations of chapter 211B, was not so lacking in reasonable basis to be found to be frivolous. In addition, there is no evidence that Mr. Stegner or his counsel interposed the Complaint for an improper purpose, such as to harass the Respondents. Instead, it appears that the Complainant proceeded according to a good faith belief, based on some foundation, about the substance of his claims against the Respondents.[2]
The Administrative Law Judge concludes, therefore, that the Complainant should not be compelled to pay Respondent’s Gabriel’s attorney’s fees in this matter. Moreover, the ALJ notes that while counsel for Ms. Gabriel states in his letter requesting fees that he was retained “the week of July 30, 2007,” the Complaint was not filed until August 1, 2007, and the Respondents were first notified of it on August 2, 2007. Given that the matter was dismissed one day later, it seems unlikely that Ms. Gabriel incurred much in the way of attorney’s fees. Respondent Gabriel’s request for attorney’s fees and costs is denied.
B.L.N.