|
OAH 8-6381-20068-CV |
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
|
Jeannette M. Pahl,
Complainant, vs. Kuchen Meyer,
Respondent. |
ORDER OF DISMISSAL |
On November 18, 2008, Jeannette Pahl filed a Complaint with the Office
of Administrative Hearings alleging Respondent violated Minn. Stat. § 211B.06
by preparing and disseminating false campaign material concerning the November
2008 City of Afton mayoral election.
The Chief Administrative Law Judge assigned this matter to the
undersigned Administrative Law Judge on November 18, 2008, pursuant to Minn.
Stat. § 211B.33. A copy of the Complaint
and attachments were sent to each Respondent by
After reviewing the Complaint and attachments, the Administrative Law
Judge finds that the Complaint does not support a prima facie violation of Minn. Stat. § 211B.06.
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 Jeannette Pahl against Respondent Kuchen
Meyer is DISMISSED.
Dated: November 19, 2008 s/Eric L. Lipman
__________________________
ERIC
L. LIPMAN
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
The
Complaint alleges that in October of 2008, Respondent Kuchen was a write-in
candidate for Mayor of the City of Afton, Minnesota. The Complaint further alleges that Meyer
prepared and disseminated a campaign flyer to the residents of Afton that contained
false campaign material regarding herself and candidates for election to
The Complaint
contends that the following claims in the Kuchen flyer are false:
[I] never voted to use eminent domain nor
has any Afton City Council.
….
After all the unnecessary and frivolous
expenditures were cut from the budget we created a nearly $300,000 budget
reserve…. And now, according to Nick
Mucciacciaro the current council majority has spent that down to $60,000 in 2
years!
As
the Complainant, Ms. Pahl, reasons, the statements are false because: (1)
during Ms. Kuchen’s tenure on the Afton City Council, Kuchen voted in favor of
“direct[ing] that the City Move Forward with the Procedures of Eminent Domain
as Necessary;”[1] and (2)
the current budget reserve for the City of Afton is $302,757.
No
averment is made that the Ms. Kuchen knew that the claims in her flyer were
false when she circulated them or that Kuchen circulated her statements with
reckless disregard as to their falsity.
Minn. Stat. § 211B.06, subd. 1, prohibits
intentional participation:
… [i]n the preparation, dissemination, or
broadcast of paid political advertising or campaign material with respect to
the personal or political character or acts of a candidate, or with respect to
the effect of a ballot question, that is designed or tends to elect, injure,
promote, or defeat a candidate for nomination or election to a public office or
to promote or defeat a ballot question, that is false, and that the person
knows is false or communicates to others with reckless disregard of whether it
is false.
In order to be found to have violated this section, a person must
intentionally participate in the preparation, dissemination or broadcast of
false campaign material that the person knows is false or communicates with
reckless disregard of whether it is false. As interpreted by the
Minnesota Supreme Court, the statute is directed against false statements of
specific facts.[2]
The statute does not bar criticism that is merely
unfair or unjust.[3] The statute is not intended to prevent
criticism of candidates for office, or to prevent unfavorable deductions or
inferences from a candidate’s conduct; even if those conclusions might be
misleading or incomplete.[4] Likewise, expressions of opinion, rhetoric,
and figurative language are generally protected speech if, in context, the
reader would understand that the statement is not a representation of fact.[5]
With respect to the allegation regarding Kuchen’s
voting record, Ms. Pahl has not set forth sufficient facts to state a violation
of Minn. Stat. § 211B.06. Kuchen claims
in the flyer that she never voted in favor of the City using its eminent domain powers – not that she likewise opposed the
City’s preparations for a future use of this power. Indeed, as the Minutes furnished as an
attachment to the Complaint make clear, the direction to City Staff to “proceed with a petition for eminent
domain” was not approved at the City Council meeting cited by Ms. Pahl.[6] The mere assertion that Kuchen’s claim is
incomplete, or should not be believed because of other facts, falls short of
the standard of liability under Minn. Stat. § 211B.06.
With respect to the allegation regarding the amount
of the City reserves, Ms. Pahl has not set forth sufficient facts to state a
violation of Minn. Stat. § 211B.06. Ms. Kuchen
asserted in her flyer that “according to
Nick Mucciacciaro, the current council majority has spent that down to
$60,000 in 2 years.”[7] Read in
context, this claim is demonstrably true – Mr. Mucciacciaro has made such an assertion. Ms. Pahl, in her contemporaneous and parallel
filing with this Office, has furnished the “State of the City” letter in which
Mr. Mucciacciaro makes the claim that the city’s budget reserve “has been spent
down to where it stands at only $60,000.”[8] For her part, Ms. Kuchen cited the source for
her statement on the budget reserve, equipping
Significantly,
as to both claims, Pahl does not allege that Kuchen knew that either of the
contested claims were false when they were circulated or that Kuchen circulated
these statements with reckless disregard as to their falsity.
For
these reasons, Ms. Pahl’s Complaint fails to set forth a violation of the Fair
Campaign Practices Act. Accordingly,
this matter must be dismissed.
E.
L. L.
[1]
See,
Complaint, Attachment No. 1 (Minutes of
[2]
See,
Bundlie v. Christensen, 276 N.W.2d 69, 71 (
[3] Bundlie v. Christensen, 276 N.W.2d 69, 71 (Minn. 1979) (statements which “told only one side of the story,” or were merely “unfair” or “unjust,” without being demonstrably false, are not prohibited by the Fair Campaign Practices Act.)
[4] Kennedy
v. Voss, 304 N.W.2d 299 (
[5]
Jadwin v. Minneapolis Star and Tribune Co.,
390 N.W.2d 437, 441 (Minn. App. 1986) (citing
Old Dominion Branch No. 496, National Assoc. of Letter Carriers v. Austin,
418 U.S. 264, 284-86 (1974)). See also, Milkovich v. Lorain Journal Co.,
497 U.S. 1, 16-17 (1990); ; Hunter v.
Hartman, 545 N.W.2d 699, 706 (Minn. App. 1996); Diesen v. Hessburg, 455 N.W.2d 446, 451 (
[6] See, Complaint, Attachment No. 1, Item G (Minutes of Afton City Council Meeting, December 20, 2005) (emphasis added).
[7] See, Complaint, at 3 (emphasis added).
[8] See, Pahl v. Mucciacciaro, OAH Docket No. 8-6381-20067-CV (2008).