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3-6385-17601-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Complainants, vs. Susie
Wojchouski, Fred Patch, Bruce Thielen,[1]
and Rhonda Thielen, Respondents. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on
William J. Everett, Attorney at Law, Everett Law LLC,
Jay Benanav, Attorney at Law, Weinblatt &
Gaylord, PLC,
NOTICE
This is the final decision in this
case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek
judicial review as provided in
STATEMENT OF ISSUES
Did Respondents violate Minn. Stat. §
211B.06 by intentionally participating in the preparation or dissemination of
false campaign material that Respondents knew was false or communicated to
others with reckless disregard as to whether it was false?
The panel concludes that the
Complainants have established by clear and convincing evidence that Respondents
Fred Patch and Rhonda Thielen violated Minn. Stat. § 211B.06.
The panel concludes that the Complainants have failed to establish by
clear and convincing evidence that Respondent Susie Wojchouski violated Minn.
Stat. § 211B.06.
Based upon the entire record, the panel makes the
following:
FINDINGS OF
FACT
Background
1.
In November
2002, Complainant Glen Posusta was elected to the Monticello City Council. He took office in January 2003. In 2006, Mr. Posusta ran for re-election to
the City Council.
2.
Complainant
Clint Herbst was first elected to the Monticello City Council in 1990. He served from 1991-2002. In 2002, Mr. Herbst ran for mayor of
3.
Respondent Susie
Wojchouski is the director of the Monticello Chamber of Commerce. In 2006, Ms. Wojchouski was a candidate for
the Monticello City Council.
4.
Respondent
Rhonda Thielen is the wife of Bruce Thielen.
Mr. Thielen was a member of the Monticello City Council from 1998 through
December 2002. He served one term as Mayor
of Monticello from January 2003 through December 2004.
5.
Respondent Fred
Patch is the former building code official for the City of Monticello. Mr. Patch was employed by the City of
Monticello for nine years, from approximately 1996-2005. Mr. Patch currently has a 17-count complaint
pending in U.S. District Court against the City and both Mr. Posusta and Mr. Herbst
individually.[3] The claims for relief arise out of the
termination of Mr. Patch’s employment. Mr.
Patch testified that he has suffered greatly because of harassment by Mr.
Posusta. Mr. Patch believes that Mr. Posusta
led a “crusade” against him that resulted in the loss of his job.[4]
6.
Mr. Patch
supported Ms. Wojchouski’s candidacy for City Council during the 2006 campaign
season. He helped Ms. Wojchouski’s
campaign by placing approximately eight of her lawn signs around
7.
Ms. Wojchouski
knew that there was ill will between Mr. Patch and the Complainants.[6] Sometime in late September of 2006, Ms.
Wojchouski indicated to Mr. Patch that she was interested in receiving from him
any information he had about Mr. Posusta and Mr. Herbst that might help her
campaign.[7]
8.
Mr. Patch drafted
a campaign flyer with 8 bullet point paragraphs detailing alleged misconduct
that he believed was “particularly politically offensive” regarding Mr. Posusta
and Mr. Herbst.[8]
9.
Mr. Patch
designed the flyer so that it could be distributed to the voters in
Offensive juvenile behavior, half-truths, misrepresentations,
lies, hidden agendas, give-aways, retaliatory threats, hostility, bullying and
an absence of support for Monticello Schools . . . Tune in to their “reality show” on cable TV
or attend a council meeting on the first and third Monday of the month at 7:00
p.m. Do they represent who we are? Are they our best representatives?[9]
10.
In early October
of 2006, Mr. Patch delivered two copies of his flyer to Ms. Wojchouski at her
office.[10] Ms. Wojchouski read through the flyer and
then folded both copies and stored them under a book in her living room at home.[11]
11.
There is no
evidence that Mr. Patch gave the flyer to anyone other than Ms. Wojchouski.
12.
Sometime in
early to mid-October 2006, Ms. Wojchouski had a campaign meeting in her
home. At the end of the meeting, after
others had left, Ms. Wojchouski showed the flyer prepared by Mr. Patch to
Rhonda and Bruce Thielen. Rhonda Thielen
read through the flyer, and she and Ms. Wojchouski commented on the information
contained in the bullet points. Ms.
Wojchouski knew that some of the information in the flyer was false, and she
felt that one could “poke holes” in almost every bullet point. In general, she viewed the information as merely
“stupid” and insignificant. She told Ms.
Thielen she had decided not to use it in her campaign.[12]
13.
Rhonda Thielen
asked Ms. Wojchouski if she could keep a copy of the flyer. Ms. Wojchouski told her that she could keep a
copy of the flyer so long as she did not use it in any way that would be associated
with her campaign or with Fred Patch.[13] Ms. Thielen left Ms. Wojchouski’s house with
a copy of the flyer.[14]
14.
On her home
computer, Ms. Thielen retyped Mr. Patch’s flyer. She made additions to some of Mr. Patch’s paragraphs,
including bullet points 2, 7, and 8, and she added two additional bullet
points. Neither of the two additional
bullet points is at issue in this matter.[15]
15.
Ms. Thielen changed the heading of the flyer to read: “Re-elect
the ‘Good-Ol-boys” to City Council?” and under the heading she added the
phrase “Voters should know that . . .” Following
this phrase is a list of the ten paragraphs that detail alleged misconduct on
the part of Posusta and Herbst, and Mr. Patch’s closing paragraph that begins:
“Offensive juvenile behavior…”[16] After this paragraph, Ms. Thielen added the
following in bold-face type:
THIS ELECTION
THERE IS AN ALTERNATIVE TO THE “GOOD-OL-BOYS.”
ASK YOURSELF WHAT CONSTITUENTS DO THEY LISTEN TO? VOTE FOR A DIFFERENT CANDIDATE TO REPRESENT
YOU![17]
16.
At the very bottom of the flyer, Rhonda Thielen added a disclaimer
that reads: “This is public information not paid for or endorsed by any
candidate.” Ms. Thielen added the
disclaimer in response to Ms. Wojchouski’s request that she not associate the
flyer with Fred Patch or with Wojchouski’s campaign.[18]
17.
Rhonda Thielen
printed out approximately six copies of the 10-point flyer.[19] She gave a copy of the flyer to three people:
Harvey Kendall (her husband’s first campaign manager); Don Doran (her husband’s
second campaign manager); and Cindy Anderson (Mr. Herbst’s opponent in the 2006
mayoral race). Ms. Anderson is also a
long-time friend of the Thielens.[20]
18.
Ms. Thielen maintains
she threw her remaining three copies of the flyer into a construction dumpster
outside of the Sunny Fresh Foods store where she works. Ms. Thielen does not know how the 10-point
flyer got to be distributed beyond the three persons to whom she gave it.[21]
19.
In mid-October
of 2006, the 10-point flyer was distributed on a limited basis to homes in
20.
Mr. Posusta
first became aware of the 10-point flyer on
21.
On the evening
of October 16, 2006, Mr. Herbst spoke to Ms. Wojchouski and asked her if she
knew anything about the flyer. She
denied any involvement with a flyer; said she knew nothing about it; and asked
him if he had any idea who was responsible for it.[26]
22.
On
23.
After Mr.
Patch’s deposition was over, Mr. Posusta and Mr. Herbst went to Ms. Wojchouski’s
office at the Monticello Chamber of Commerce to confront her about her
involvement with the flyer. Mr. Herbst
brought with him the copy of the flyer that Mr. Posusta had obtained from Mr. Sawatske. At first Ms. Wojchouski again denied that she
had any knowledge of the flyer. However,
once Mr. Posusta and Mr. Herbst told her that Mr. Patch had testified under
oath in his deposition that he had created the flyer and given her two copies,
Ms. Wojchouski admitted that Mr. Patch had given her such a document. Ms. Wojchouski asked Mr. Herbst to show her his
copy of the flyer. After looking at it,
Ms. Wojchouski told Mr. Herbst and Mr. Posusta that the copy they had was not
the same flyer that she had received from Patch.[28]
24.
At the close of
their conversation, Mr. Posusta and Mr. Herbst suggested that Ms. Wojchouski should
hire an attorney.[29]
25.
At a
26.
On
27.
At some point
between October 18 and October 23, 2006, Ms. Wojchouski met Rhonda Thielen at a
restaurant to discuss the distribution of the flyer. Ms. Thielen told Ms. Wojchouski that she had
added a disclaimer to the bottom of the flyer, as Ms. Wojchouski had requested,
but that she did not know how or whether it had been distributed.[34]
28.
The Complainants
filed this complaint against Respondents Fred Patch and Susie Wojchouski on
29.
In late October of
2006, about 25 to 30 lawn signs appeared along Highway 25 in
30.
Clint Herbst was
re-elected mayor of
31.
Glen Posusta was
defeated in his bid for re-election to the Monticello City Council. Ms. Wojchouski received 2,026 votes; Mr. Brian
Stumpf received 1,751 votes; and Mr. Posusta received 1,733 votes.
32.
The campaign
flyer bullet points that are at issue in this hearing are Bullet Points 2, 3,
7, 8, and 10.[36]
Election
2004—Your Mayor Herbst accepted substantial political contributions from his
township cronies to pay for election expenses—including all his BIG SIGNS. After the election, Posusta, Herbst, Mayer
and Perrault provided a little political pay-back by settling a lawsuit,
awarding that resident nearly $100,000!
Of course, that same township resident remains a faithful campaign
contributor this election, and the sign
litter is there to prove it this campaign as well!
33.
Mr. Patch wrote most
of the text of Bullet Point 2.[37] Rhonda Thielen added only the last phrase, “and
the sign litter is there to prove it this campaign as well!”[38]
34.
The settlement referenced
in Bullet Point 2 refers to the City’s settlement of a lawsuit commenced by Rebecca
Young, a former employee of the City of Monticello. Young brought a wrongful termination lawsuit
against the City and City Administrator Richard Wolfsteller after she was fired
in 2004. Her suit alleged that she was
fired, at least in part, for using the City’s copy machine to make 50 copies of
an anti-annexation petition.[39]
35.
Ms. Young and
her husband, Jeff Young, live in
36.
Mr. Patch
testified that, in 2004, Jeff Young had boasted that he and his anti-annexation
group would do everything they could to defeat Bruce Thielen and two other
council members. Mr. Patch believed Mr. Young
and his group had made “substantial efforts” on behalf of their favored
candidates in the form of endorsements and letters to the editor.[41]
37.
The City of
Monticello is a member of the League of Minnesota Cities. As a member, the City receives liability
insurance coverage and legal representation from the League of Minnesota Cities
Insurance Trust (LMCIT). LMCIT attorneys
Patricia Beety and Mark Rossow represented the City and former Monticello City
Administrator Richard Wolfsteller in Ms. Young’s lawsuit. Prior to a settlement conference, the City
gave complete authority to LMCIT to resolve the matter since any settlement
funds would be paid by LMCIT as opposed to the City.[42]
38.
On or about
April 26, 2006, during a settlement conference, LMCIT reached an agreement to
resolve the matter with Ms. Young. The
terms included a payment of $98,000 and a written letter of apology to Ms.
Young. Ms. Young wanted the letter of
apology to come from Mr. Wolfsteller, but he refused to sign such a letter. Ms. Young agreed to accept a letter of apology
signed by Mayor Herbst instead. Herbst
wrote the letter as requested, although he was dismayed at the amount of the
settlement.[43]
39.
In a letter to
the editor that was printed in the June 14, 2006, Monticello Times, Jeff Young stated that he was a “strong supporter
of Mr. Herbst for mayor.”[44]
40.
In 2006, Mr.
Young met with Ms. Wojchouski at the Monticello Chamber of Commerce. Ms. Wojchouski testified that Mr. Young inquired
about her candidacy for City Council, and he said that there could be a contribution
for her if she answered some questions “correctly.” Mr. Young then asked Ms. Wojchouski whether
she believed the City should “keep” Mr. Wolfsteller, the Monticello City
Administrator. Ms. Wojchouski interpreted
the question to mean that Mr. Young wanted a commitment from her that, if
elected, she would vote to terminate Wolfsteller’s employment. Ms. Wojchouski was insulted by the question
and she reminded Mr. Young that he would not be one of her constituents as he does
not live in the City of Monticello. According
to Ms. Wojchouski, Mr. Young responded that “we made substantial contributions
to ‘the boys’ last time and look what we got from them.” Ms. Wojchouski interpreted “the boys” to mean
Mr. Posusta and Mr. Herbst.[45]
41.
Mr. Patch had no
personal knowledge regarding the settlement of Ms. Young’s lawsuit. In drafting Bullet Point 2, Mr. Patch relied
on articles in the Monticello Times referring
to the City’s settlement of the litigation and on “opinions expressed in City
Hall.”[46]
42.
Mr. Herbst did
not receive any financial contributions for his campaign from either Rebecca or
Jeff Young in 2004 or 2006. In 2004, however,
Mr. Herbst did receive a campaign contribution of $100 from the anti-annexation
group. Mr. Herbst did not receive any
financial contributions from this group in 2006.[47]
43.
Mr. Patch had no
personal knowledge as to what amount, if any, the Youngs or the anti-annexation
group contributed to Mr. Herbst’s campaign in 2004 or 2006. Patch based the statement that Mr. Herbst
accepted “substantial political contributions from his township cronies to pay
for election expenses” on two facts: (1)
what Mr. Young told him in 2004 about his anti-annexation group supporting Mr.
Herbst’s campaign; and (2) on Mr. Young’s letter to the editor published in June
2006 in which Young stated that he “was a strong supporter of Mr. Herbst.” Patch based the statement in Bullet Point 2 that
the “same township resident remains a faithful campaign contributor” on what
Ms. Wojchouski reported to him about the conversation she and Jeff Young had in
2006.[48]
44.
Rhonda Thielen
had no personal knowledge as to what amount, if any, the anti-annexation group
or its members contributed to Mr. Herbst’s campaign in either 2004 or 2006. Ms. Thielen knew only that Jeff Young was
supporting Mr. Herbst in 2004, and that Mr. Herbst received more campaign
contributions in 2004 than he did in 2002.
Ms. Thielen assumed that the increase in contributions to Mr. Herbst’s campaign
in 2004 was due to support from the anti-annexation group and its members. Based on this assumption, Ms. Thielen assumed
further that the settlement of Rebecca Young’s wrongful termination lawsuit was
“political payback” for those contributions.[49]
45.
Bullet Point 3
is the same in both versions of the flyer.[50]
46.
On
47.
The closing of
the sale was delayed for months because the City was unable to obtain clear
title on the land. In the end, the City sold the land to Mr.
Posusta by quit claim deed, but the closing did not take place until October
2003, some 15 months after the parties had entered into the purchase agreement
and ten months after Mr. Posusta’s election to the City Council.[52]
48.
At an October
27, 2003, City Council meeting, the City Council discussed the interest due as
a result of the delay in closing the land sale.
Mr. Posusta maintained that he should not have to pay the interest
because he was not responsible for the delay.
As a compromise, then-Mayor Bruce Thielen proposed splitting the
interest between Mr. Posusta and the City.
The City Council did not take a formal vote on the matter but directed
City staff to split the interest owed with Mr. Posusta.[53]
49.
At the time that
Mr. Posusta entered into the purchase agreement with the City, he was not a
member of the City Council. However,
when the City Council directed splitting the interest owed with Mr. Posusta, he
was a City Council member.
50.
Fred Patch
contacted the State Auditor’s Office regarding the City’s land sale to Mr.
Posusta. Mr. Patch expressed concern about
the sale creating a potential conflict of interest for Mr. Posusta. In response to Mr. Patch’s inquiry, the
Auditor’s Office reviewed the sale between the City and Mr. Posusta. In a five-page letter to then-Mayor Bruce
Thielen, dated November 30, 2004, the State Auditor’s Office found no conflict
of interest regarding the original purchase agreement between the City and Mr.
Posusta, because it was entered into before Mr. Posusta became a city council
member. Nor did the State Auditor find
that closing on this agreement after Mr. Posusta was elected constituted a
conflict of interest. The Auditor’s
Office, however, cautioned that:
a conflict of interest may have resulted when the
terms of the agreement were changed to split the interest after Mr. Posusta
became a city council member. . . . The City’s decision to change the terms of
the contract when Mr. Posusta was a city council member could be viewed as a new
contract or an amendment to the existing contract. Mr. Posusta saved $2,232 after he became a
council member than was provided by a contract signed prior to him becoming a
council member. This benefit to him
could be viewed as a conflict of interest.[54]
51.
The Auditor’
Office closed its letter by stating the following:
The State Auditor’s Office cannot determine how a
court would resolve this issue. We
suggest the City avoid similar actions in the future and consider adopting its
own conflict of interest policy. In
addition, we recommend that the City document decisions, such as adjusting a
contractual interest payment, in its city council meeting minutes.[55]
52.
Mr. Patch relied
on this report from the State Auditor’s Office when drafting Bullet Point 3.[56]
53.
Rhonda Thielen
assumed the information supplied by Mr. Patch in Bullet Point 3 was accurate
because Mr. Patch was preparing his own lawsuit against the City and Mr. Posusta. Although Ms. Thielen had read the State
Auditor’s report in 2004, when it was issued, she did not recall the report’s
specific findings when reading and retyping Bullet Point 3 in 2006.[57]
Fall
2005—Posusta and Herbst concluded a bullying and retaliatory crusade by
creating a new policy that ended in wrongful termination of a city employee,
resulting in another dismal lawsuit against the City to the tune of approximately $3 million taxpayer dollars. While the city does have insurance for such
lawsuits, it is still a taxpayer expense to pay attorneys through the League of
Minnesota Cities membership.
54.
Rhonda Thielen
added the italicized portion to Mr. Patch’s original Bullet Point 7, and it is
only this italicized portion that is challenged in this bullet point.[58] Ms. Thielen claims she came up with the $3
million dollar figure based on her husband’s report of a conversation he had
with Mr. Patch in which Mr. Patch indicated that his lawsuit against the City
may be worth “a couple million dollars.”[59]
55.
Neither Fred
Patch nor Bruce Thielen recalls discussing the $3 million dollar figure with
each other or Ms. Thielen.[60]
Winter 2005—At
the Lions Club holiday party Herbst and one of his club mates participated in
an explicitly sexual performance that was demeaning to women and offensive to
nearly all Lions Club members, for which Mayor Herbst later wrote a letter of
apology to try to cover up his antics. At another local meeting, while discussing
trees, Mayor Herbst made an inappropriate comment in front of females,
referring to his own “woody.”
56.
The last
sentence in Bullet Point 8, regarding Mr. Herbst’s alleged “woody” comment, was
not in Mr. Patch’s original flyer.[61] Ms. Thielen added the last sentence to Bullet Point
8 when she created the 10-point flyer, and it is only this sentence that is
challenged.[62]
Ms. Thielen added the sentence based on her
misinterpretation of something Ms. Wojchouski had told her earlier about a
comment made by another City Council member. Ms. Thielen mistakenly attributed the “woody”
comment to Mr. Herbst.[63]
57.
Ms. Wojchouski
knew that the statement in Bullet Point 8 that Mr. Herbst had made an
inappropriate reference to his own “woody” at a local meeting was false. Ms. Wojchouski knew that someone other than
Mr. Herbst had made the “woody” comment at that meeting.[64]
58.
After the
probable cause hearing in this matter, Ms. Wojchouski called Rhonda Thielen and
told her that the Mr. Herbst did not make the “woody” comment and that this
part of Bullet Point 8 was wrong. Ms.
Thielen responded that she had misunderstood Ms. Wojchouski, a position she
reiterated at the hearing.[65]
59.
Bullet Point 10
is the same in both flyers and was written by Mr. Patch.
60.
On September 29,
2006, Mr. Posusta was driving by
61.
Mr. Posusta then
returned to his car and drove over to the high school to talk to Gail Grieme, one
of the cross-country coaches. Mr.
Posusta told Ms. Grieme that the two girls had damaged his sign, and he asked her
to tell him the girls’ names so that he could contact their parents. At this point, the two girls ran up to the
coach and apologized to Mr. Posusta for damaging his sign. They also offered to pay for it. The girls were afraid that they were going to
get into trouble for pulling out the lawn sign.[67]
62.
Fred Patch
learned of the incident between Mr. Posusta and the high school girls from his
daughter later that same day. That
evening, he also received a call about the incident from Ms. Kim Nygaard. Ms. Nygaard is another coach for the cross-country
team. She is also a friend of the Patch
family. Ms. Nygaard learned about the
incident from some of the girls but did not personally witness the
incident. During their conversation, Ms.
Nygaard told Mr. Patch that she would see to it that the incident “became a
legal matter.”[68]
63.
On October 3,
2006, Monticello High School Activities Director Lisa Johnson called Wright
County Sheriff’s Deputy Craig Canton.
She told him there had been an incident involving two students on the cross-country
team and an adult male. She asked the deputy to come to her office to meet with
the girls. Deputy Canton went to Ms.
Johnson’s office and interviewed the two girls directly involved. Fred Patch’s daughter was initially present
in Ms. Johnson’s office, but once Deputy Canton determined that she was not
directly involved in the incident, he asked her to leave so that he could
interview the other two girls in private.[69]
64.
The girl who Mr.
Posusta had grabbed by the shoulder told Deputy Canton that Mr. Posusta was
loud and angry but that he did not threaten her or hurt her. She also stated that Mr. Posusta did not “put
fear in her” and that he immediately released his hand from her shoulder once
she turned and faced him.[70]
65.
Both Ms.
Wojchouski and Ms. Thielen heard about the incident involving Mr. Posusta and
the high school girls from a number of people in
66.
Ms. Thielen
talked to yet another high school girl who was on the cross-country team and had
witnessed the incident. In recounting
the incident, this girl did not report that Mr. Posusta hit, shook, or grabbed
the high school girl who damaged his sign.
She said only that the incident was “scary.”[72]
67.
No one ever
reported to Fred Patch or Rhonda Thielen that Mr. Posusta hit or struck the
high school girl in any way.
68.
Mr. Patch wrote
the flyer[73]
in anger after talking to his daughter and Ms. Nygaard about the September 29th
incident with Mr. Posusta.[74]
69.
Immediately
before the probable cause hearing in this matter, Mr. Patch contacted the
Wright County Sheriff’s Department and requested a copy of any investigation
reports relating to the September 29th incident. Upon receipt of this request, the Sheriff’s
Department contacted Mr. Posusta the next morning, October 30, 2006, and said
they needed to follow-up on the incident because “someone” had requested a
written report. Mr. Posusta later
learned that it was Mr. Patch who had requested a written report.[75]
70.
Based on the
interviews with the persons involved in the incident, the police concluded that
no follow-up investigation was needed.[76]
Based upon the foregoing Findings of Fact, the panel makes the
following:
CONCLUSIONS
1. Minn. Stat. § 211B.35 authorizes the panel of
Administrative Law Judges to consider this matter.
2. Campaign material is defined to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, …”[77]
3. The 10-bullet point flyer[78] is campaign material within the meaning of Minn. Stat. § 211B.01, subd. 2. It was written by Mr. Patch and Ms. Thielen and disseminated, albeit on a limited basis, for the purpose of influencing voting in the 2006 election.
4. Minn. Stat. §
211B.06, subd. 1, provides, in part: “A
person is guilty of a gross misdemeanor who intentionally participates in the
preparation [or] 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.”
5. The burden of proving the allegations in the complaint is on the Complainants. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[79]
6. The Complainants have demonstrated by clear and convincing evidence that Respondent Fred Patch violated Minn. Stat. § 211B.06 by intentionally participating in the preparation of campaign material (portions of Bullet Point 2 and Bullet Point 10) that was false and that he knew was false or communicated to others with reckless disregard as to whether it was false.
7. The Complainants have failed to demonstrate by clear and convincing evidence that Respondent Susie Wojchouski violated Minn. Stat. § 211B.06.
8. The Complainants have demonstrated by clear and convincing evidence that Respondent Rhonda Thielen violated Minn. Stat. § 211B.06 by intentionally participating in the preparation and dissemination of campaign material (portions of Bullet Point 2 and Bullet Point 10) that was false and that she knew was false or communicated to others with reckless disregard as to whether it was false.
9. The violations were committed knowingly or with reckless disregard for the truth. They likely had some impact on some voters, and could not have been countered easily by the Complainants; however, the record does not suggest that many voters were misled or that the electoral process was corrupted as a result. Each Respondent shall be fined $600 for each of these violations.
10. The Complainants failed to demonstrate by clear and convincing evidence that the Respondents violated Minn. Stat. § 211B.06 with respect to Bullet Points 3, 7 and 8 of the campaign flyer.
Based upon the record herein, and for
the reasons stated in the following Memorandum, the panel of Administrative Law
Judges makes the following:
ORDER
IT IS ORDERED:
1. That having been found to have violated Minn. Stat. §
211B.06, Fred Patch pay a civil penalty of $1,200 by March 1, 2007.[80]
2. That having been found to have violated Minn. Stat. §
211B.06, Rhonda Thielen pay a civil penalty of $1,200 by March 1, 2007. [81]
3. That the Complaint as against Respondent Susie
Wojchouski is DISMISSED.
Dated:
January 29, 2007
|
/s/ Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Presiding Administrative Law Judge |
|
/s/ Eric L. Lipman |
|
ERIC L. LIPMAN |
|
Administrative Law Judge |
MEMORANDUM
Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated this section, a person must intentionally participate in the preparation or dissemination of campaign material that the person knows is false or communicates with reckless disregard of whether it is false.
Campaign Material
As an initial matter, Ms. Wojchouski and
Ms. Thielen argue that the flyer was not campaign material or, if it was, that
they were not involved in disseminating it.
Campaign material is “any literature, publication, or material that is
disseminated for the purpose of influencing voting at a primary or other
election, except for news items or editorial comments by the news media.”[82] Respondents contend that because the flyer
was not distributed widely throughout
Fred Patch testified that his version
of the flyer was prepared as campaign material and that he intended it to
influence voters to vote for candidates other than Mr. Posusta and Mr.
Herbst. Ms. Thielen made a few changes
to the text and added a disclaimer providing that it was “public information
not paid for or endorsed by any candidate.”
She then gave it to three friends who are active in local politics, and
she testified she intended that her friends would “read and destroy” the
document. She also testified that she
disposed of her remaining copies in a dumpster outside her place of
employment. It is not altogether clear
from the record how widely the material was distributed or who distributed the
flyers beyond this group. It is clear,
however, that further distribution did take place. The Complainants testified that several of
the flyers were found in doors in the downtown area of
Mr. Patch intended the flyer to be distributed by Ms. Wojchouski; the fact that Ms. Thielen was the vehicle by which it was disseminated does not materially alter his responsibility for it. Ms. Thielen’s testimony that she intended that her friends read, and then destroy, the document is not plausible. Based on the format and wording of the flyer, and the express appeal to vote out Mr. Posusta and Mr. Herbst; based on the addition of a disclaimer intended to protect Mr. Patch and Ms. Wojchouski; and based on the further fact that one of the persons she gave the flyer to was Mr. Herbst’s opponent in the mayoral race, the panel concludes that Ms. Thielen prepared this material and disseminated it for the purpose of influencing voters.
The panel concludes that both Mr. Patch and Ms. Thielen are responsible for preparation of the flyer, which is campaign material and that the flyer was disseminated for the purpose of influencing voters. The panel also concludes, however, that Ms. Wojchouski is not responsible for preparing or disseminating the flyer. Although she told Patch that she would look at any information he prepared that might be useful to her campaign, and she gave it to Rhonda Thielen knowing that Ms. Thielen might disseminate it further, Ms. Wojchouski did not write any of the material and had no desire to use it in connection with her campaign. When she gave it to Ms. Thielen, she was not sure what Ms. Thielen would do with it, nor did she particularly care, as long as Ms. Thielen did not connect her to it. On this record, the panel could not find that Ms. Wojchouski was responsible for preparing or disseminating the flyer. The Complaint against her is dismissed.
Falsity and Actual Malice
The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard applicable to defamation cases involving public officials from New York Times v. Sullivan.[83] Based upon this standard, the Complainants must show by clear and convincing evidence that Fred Patch and Rhonda Thielen either published the challenged statements knowing the statements were false or published them with reckless disregard for truth or falsity. The test is subjective; the Complainants must come forward with sufficient evidence to prove that the Respondents “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[84]
As the U.S. Supreme Court has noted, there is not one precise definition of “reckless disregard.” Inevitably, its outer limits must be marked through case-by-case adjudication. A respondent cannot automatically ensure a favorable decision by testifying that he published with a belief that the statements were true.[85] A statement may have been made with actual malice if it
is fabricated by the defendant, is the product of his imagination, . . . is based wholly on an unverified anonymous telephone call [or if] the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation.[86]
In determining whether a respondent had serious doubts about the truth of his statement, the panel must assess the information available when the statement was made, including the identities of the sources and what those sources said. Evidence that there were no sources, that the sources were unreliable or uninformed, or that the information provided by the source was misrepresented may prove the requisite mental state.[87]
Although for different reasons, both Fred Patch and Rhonda Thielen strongly resent the Complainants. Mr. Patch holds them both responsible for the loss of his job; and Ms. Thielen views them as the political team that ended her husband’s career in politics. Both of them are willing to believe almost anything negative about Mr. Herbst and Mr. Posusta. This slanted perspective alone, however, is not sufficient to show actual malice.[88]
This bullet
point states that in 2004 Mr. Herbst “accepted substantial political
contributions from his township cronies to pay for election expenses.” It then
states that Herbst, Posusta, and other council members settled Rebecca Young’s
lawsuit for nearly $100,000 as “political pay-back” for these substantial
contributions. The flyer concludes with
the assertion that “this same township resident remains a faithful contributor
during the 2006 election, and the sign litter is there to prove it!”
The evidence
established that, contrary to the flyer’s statements, Mr. Herbst did not
receive any financial contributions from Jeff or Rebecca Young in either 2004
or 2006. Mr. Herbst received only a $100
campaign contribution from MTCAA in 2004, and he received no financial contributions
from this group in 2006.
Mr. Patch
argues that it was fair to conclude, based upon newspaper articles concerning
the settlement, that the City settled this litigation, notwithstanding Herbst’s
and Posusta’s view that the League of Minnesota Cities was making key
litigation decisions. The Administrative
Law Judges concur that stating the City settled this litigation is not a false
statement of fact.
Both Mr. Patch
and Ms. Thielen further argue that in using the term “contribution,” they
intended it to mean demonstrations of public support for, and endorsement of, Mr.
Herbst; such as statements made by Jeff Young in newspaper articles and letters
to the editor.
Fred Patch
admitted that he had no personal knowledge as to what amount, if any, the
Youngs or the anti-annexation group contributed to Mr. Herbst’s campaign in
2004 or 2006. Mr. Patch testified that
he based his statement that Mr. Herbst had accepted “substantial political
contributions from his township cronies to pay for election expenses” on what
Mr. Young told him in 2004 about his anti-annexation group supporting Mr.
Herbst’s campaign. Furthermore, he based
his assertion that financial contributions were made in 2006 on Ms.
Wojchouski’s description of Mr. Young’s offer to support her if she answered
certain questions the right way and on his belief that the same “offer” had
been made to Mr. Herbst and Mr. Posusta.
In his testimony, Mr. Patch did not claim that Mr. Young had disclosed
any financial contributions to Mr. Herbst at any time. Instead, Mr. Patch consistently described Mr.
Young’s statements as involving contributions of “support” rather than “dollars
and cents.”
Rhonda Thielen
also admitted that she had no personal knowledge as to what amount, if any, the
Youngs or the anti-annexation group gave to Mr. Herbst’s 2004 or 2006
campaigns. She knew only that Jeff Young
was supporting Mr. Herbst in 2004, and that Mr. Herbst received more financial
contributions in 2004 than he did in 2002.
Ms. Thielen simply assumed that Herbst’s increase in financial
contributions in 2004 was due to support from the Youngs and the
anti-annexation group. Based on this
assumption, Ms. Thielen assumed that the settlement of Rebecca Young’s lawsuit
was “political payback” for those contributions.
In determining
whether a statement is false, the words used must be given their obvious and
natural meaning, unless they are alleged to have been used and understood in a
different sense.[89] A court must look to the nature and obvious
meaning of the language in its plain and ordinary sense, construing it as a
whole, including innuendos reasonably laid from the statement.[90]
The
Respondents’ purported construction of the word “contribution” to mean
non-financial support is not plausible, principally because both Mr. Patch and Ms.
Thielen, in their respective versions of the flyer, link contributions from Mr.
Herbst’s “cronies” to later campaign expenditures
by Mr. Herbst for lawn signs. One cannot
make campaign expenditures, or purchase lawn signs, with letters to the editor
or endorsements from well-known persons.
The ordinary reader would understand, from the manner in which the flyer
links contributions to payment of election expenses, that Mr. Herbst accepted
substantial financial contributions from the Youngs, that Mr. Herbst returned
the favor by agreeing to settle Ms. Young’s litigation on generous terms, and
that Mr. Herbst continued to accept financial contributions from the Youngs during
the 2006 election. This is a false
statement.
The panel also
concludes that the Complainants have established by clear and convincing
evidence that both Fred Patch and Rhonda Thielen knew this statement was false
or that they acted with a high degree of awareness of probable falsity. The facts they believed to be true do not
come close to supporting what they said.
The difference, the majority of the panel believes, was either imagined
or fabricated, and it demonstrates actual malice.
Bullet
Point 3 provides that “According to a written report from the Minnesota State
Auditor, your councilman Mr. Posusta had a conflict of interest when he
purchased city property along Hwy 25 while he was seated on the City
Council. From his council seat, he
reduced the purchase price and wrongly benefited in thousands of dollars to buy
prime Highway 25 frontage from the City in a closed sale.”
Mr.
Posusta argues that nowhere in the report does the Auditor say that his actions
constituted a conflict of interest.
Furthermore, he contends that the purchase price was not reduced by a single
penny; the only reduction was in the amount of interest that later accrued.
Mr. Posusta is
correct that there was no reduction in the “purchase price” for the property, but
it is undisputed that there was a reduction in the interest that was owed.
Thus, the total cost to Mr. Posusta to complete the transaction was reduced,
following the agreement to “split the interest.” Although Mr. Patch stated that Mr. Posusta
“reduced the purchase price,” the distinction between reducing the purchase
price and the interest payment paid at the time of closing is small and of
little import. It is not disputed that
the amount Mr. Posusta owed to the City was reduced by $2,232. The panel concludes that this portion of the bullet
point is not a false statement.
Mr.
Posusta is also correct that the Auditor’s Report concluded only that a
conflict of interest “may have
resulted”[91]
when he discussed “splitting the interest” in 2003. The panel concludes that in attributing a
different conclusion to the State Auditor (one that more closely matched his
own), Mr. Patch made a false statement of fact.
Mr. Posusta further contends that in falsely characterizing the
Auditor’s Report as containing a conclusion that he had a conflict of interest,
Mr. Patch intentionally misrepresented his source (the Auditor’s Report) and
accordingly demonstrated actual malice.
The Auditor’s
Report states that the $2,232 reduction in interest that Mr. Posusta obtained after
he became a council member was a benefit to him that “could be viewed as a
conflict of interest.”[92] It further states that the Auditor’s Office
cannot determine how a court would resolve the issue, and it recommends that to
avoid such issues in the future, the City Council adopt a policy
on conflicts of interest and ensure that its decisions on financial matters
involving a council member are reflected in meeting minutes.
The
panel concludes that although Mr. Patch’s characterization of the report is not
accurate, it is not so inaccurate that the difference should be attributed to actual
malice. The claims concerning Bullet
Point 3 against Mr. Patch and Rhonda Thielen (who relied entirely on Patch as
the source of this information) are accordingly dismissed.
Bullet
Point 7 provides that Mr. Posusta and Mr. Herbst created a new policy that
ended in wrongful termination of a city employee, “resulting in another dismal
lawsuit against the City to the tune of
approximately $3 million taxpayer dollars.
While the city does have insurance
for such lawsuits, it is still a taxpayer expense to pay attorneys through the
League of Minnesota Cities membership.”
Rhonda Thielen added the italicized portion above.
The Complainants argue that this statement
falsely communicates to readers that the Patch lawsuit has cost, or predictably
will cost, taxpayers approximately $3 million.
It is unclear where Ms. Thielen obtained the $3 million figure, because
the purported sources (her husband and Mr. Patch) do not recall discussing such
a figure with her or with each other. In
connection with the federal litigation, Mr. Patch has calculated his damages
“in seven figures,” and Mr. Posusta testified in the probable cause hearing
that his attorney in the federal litigation recognized that number as one that Mr.
Patch has used to describe his alleged lost wages.
The
panel concludes that the statement does not clearly communicate any false
statement of fact. Saying there is a
lawsuit “to the tune of” $3 million taxpayer dollars, wherever that figure came
from, could mean the plaintiff is claiming $3 million, which could be
true. Or it could mean the lawsuit might
cost $3 million taxpayer dollars, which would be a prediction of what might
happen in the future, as opposed to a verifiably false statement about what has
happened to date. In any event, the
panel concludes that there is an insufficient basis for finding the statement is
false. The claims concerning Bullet
Point 7 are dismissed.
Bullet
Point 8 describes a holiday party at which Mr. Herbst “participated in an
explicitly sexual performance that was demeaning to women and offensive to
nearly all Lions Club members, for which Mayor Herbst later wrote a letter of
apology to try to cover up his antics.”
This much of Bullet Point 8 has been determined to be substantially
true. To this statement, Rhonda Thielen
added “At another local meeting, while
discussing trees, Mayor Herbst made an inappropriate comment in front of
females, referring to his own ‘woody.’”
This
added statement is undisputedly false.
Ms. Thielen testified that she misunderstood a story related to her by
Ms. Wojchouski to involve Mr. Herbst, when in fact Ms. Wojchouski had
attributed the statement to someone else.
Ms. Thielen apparently believed the statement was true when she wrote
it. And given the evidence that Mr.
Herbst has a somewhat bawdy sense of humor, the statement is not so inherently
improbable that she was reckless in circulating it. The allegations concerning Bullet Point 8 are
dismissed because the Complainants failed to establish by clear and convincing
evidence that Ms. Thielen knew the statement was false or made it while
subjectively believing it was probably false.
Bullet
Point 10 states that on September 29, 2006, “Posusta accosted and battered a
senior high school girl in front of the High School for moving one of his many
political signs that are unlawfully located in the public right of way.” Mr. Patch contends that he intended the word
“battered” to mean that Mr. Posusta touched the girl without her consent. He argues that his purported meaning is
supported by the legal definition of the tort of battery, which is defined as
“intentional and wrongful physical contact with a person without his or her
consent that entails some injury or offensive touching.”[93]
Again,
in determining whether a statement is false the words used must be given
their obvious and natural meaning, unless they are alleged to have been used
and understood in a different sense.[94] This was not a publication intended for an
audience of lawyers. The
commonly understood meaning of the word “batter” is quite different from the
legal definition of the tort. It is
defined as follows: “to beat with
successive blows so as to bruise, shatter, or demolish”; “to subject to strong,
overwhelming, or repeated attack”; and “to wear or damage by hard usage or
blows,” or “to strike heavily and repeatedly.”[95] The panel concludes that Mr. Patch’s
purported meaning is not at all clear from the context of the statement, is
disingenuous, and is not likely to be the ordinary meaning attached to the
statement.[96] The ordinary reader would conclude from this
Bullet Point that Mr. Posusta had struck a teen-age girl for removing one of
his lawn signs.
Fred
Patch and Rhonda Thielen were both very careful in their testimony to say that
their sources described the incident as involving Mr. Posusta yelling at the
girls and grabbing one by the shoulder and turning her around, demanding to
know her name. The girl reported no more
than this to her coach and to the authorities.
Although this incident immediately became the subject of gossip, no one
ever reported to Mr. Patch or Ms. Thielen that Mr. Posusta hit, struck, shook
or otherwise physically abused the girl.
Accordingly, the statement that Posusta “accosted and battered a senior
high school girl” is false. Moreover,
the panel concludes that the Complainants have established by clear and
convincing evidence that Mr. Patch and Ms. Thielen either knew the statement was
false or made the statement with a high degree of awareness of its probable
falsity. Again, the facts that Mr. Patch
and Ms. Thielen believed to be true completely fail to support what they said
to voters. The difference, the panel
believes, was a fabrication that demonstrates actual malice.
K.D.S.,
E.L.L.
Administrative Law Judge Beverly Jones
Heydinger, concurring in part and dissenting in part:
I dissent from
the panel in one instance. Although I
concur that the statement in Bullet Point 2 that “that same township resident
remains a faithful campaign contributor [in] this election” is false, I cannot
conclude that Mr. Patch knew that the statement was false, or disseminated it
in reckless disregard of its truth or falsity.
Mr. Patch
asserts that he believed that the statement was true. In evaluating that representation, one must
examine whether Mr. Patch fabricated the statement, or it was a product of his
imagination, or based wholly on an unverified source so inherently improbable
that only a reckless person would put the statement in circulation.[97] At the time that Mr. Patch made the
statement, he lacked the requisite knowledge of the statement’s probable
falsity. Although he acknowledged that
he had no personal knowledge as to what amount, if any, the Youngs or the
anti-annexation township group contributed to Mr. Herbst’s campaign in 2004 or
2006, he knew that Mr. Young was a member of a group of township residents who
opposed annexation and supported Mr. Herbst’s campaign in 2004. He also knew that Mr. Young remained a strong
supporter of Mr. Herbst, based on articles in the
In light of
the circumstances, Mr. Patch could reasonably believe that the Youngs remained
“faithful campaign contributors” in the 2006 election, even if the evidence
showed that the Youngs did not in fact make a financial contribution. For these reasons, I conclude that Mr. Patch
did not violate Minn. Stat. § 211B.06.
Therefore, I would reduce his fine to a total of $600.
I
concur, however, that Ms. Thielen violated Minn. Stat. § 211B.06 for
disseminating Bullet Point 2. She
offered no basis for believing that Bullet Point 2 was correct except that Mr.
Patch had written it on the flyer. She
admitted that she had no information about the contributions that MTCAA or Mr.
Young made, and that she simply assumed that Mr. Herbst’s increased
contributions must have come from those who opposed annexation of the township
property, including the Youngs. She disseminated
the statement with no personal knowledge, without making any attempt to verify
the accuracy of the information, and in reliance on a person who had a strong
bias to misstate the facts. It is
appropriate to conclude that Ms. Thielen made the statement in reckless
disregard of its truth or falsity.
I also concur that both Mr. Patch and Ms. Thielen violated Minn. Stat. § 211B.06 with respect to Bullet Point 10.
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Administrative Law Judge |
[1] During the
evidentiary hearing, Bruce Thielen was dismissed as a Respondent by agreement
of the parties, and with consent of the panel.
[2] Testimony of
Herbst and R. Thielen.
[3] Ex. PH 18.
[4] Testimony of
Patch.
[5] Testimony of
Patch; Ex. PH14.
[6] Testimony of
Wojchouski.
[7] Testimony of
Patch.
[8] Testimony of
Patch; Ex. PH 2.
[9] Ex. PH2.
[10] Testimony of
Patch and Wojchouski; Ex. PH2.
[11] Testimony of
Wojchouski.
[12] Testimony of
Wojchouski; Ex. PH2.
[13] Testimony of
R. Thielen.
[14] Testimony of
R. Thielen and Wojchouski.
[15] Testimony of
R. Thielen; Ex. PH1.
[16] See Finding of Fact No. 9.
[17] Ex. PH1.
[18] Ex. PH1;
Testimony of R. Thielen.
[19] Ex. PH1.
[20] Testimony of
R. Thielen.
[21] Testimony of
R. Thielen.
[22] Testimony of
Herbst and Posusta.
[23] Testimony of
Herbst.
[24] Testimony of Herbst and Posusta.
[25] Testimony of
Posusta; Ex. PH1.
[26] Testimony of Herbst.
[27] Testimony of
Patch; Ex. PH 14. Mr. Patch incorrectly
stated that the document he created listed 10 items, when in fact his version
of the flyer had 8 bullet points.
[28] Testimony of
Herbst, Wojchouski.
[29] Testimony of
Wojchouski.
[30] Testimony of
Herbst and Posusta.
[31] Testimony of
Herbst.
[32] Ex. PH13.
[33] Testimony of
R. Thielen.
[34] Testimony of
Wojchouski.
[35] Testimony of
Wojchouski, Posusta and B. Thielen.
[36] Claims
concerning other bullet points were dismissed in the Notice of Determination of
Prima Facie Violation and Notice and Order for Probable Cause Hearing (Oct. 27,
2006).
[37] Ex. PH2.
[38] Testimony of
Patch and R. Thielen; Ex. PH1 (italics added).
[39] Exs. PH 5 and
PH 6. At the time she was fired, Bruce
Thielen was the mayor. Glen Posusta had
voted against terminating her.
[40] Exs. PH5 and
PH6.
[41] Testimony of
Patch.
[42] Ex. PH11;
Testimony of Posusta and Herbst.
[43] Testimony of
Herbst.
[44] Ex. PH5
[45] Testimony of
Wojchouski.
[46] Testimony of
Patch.
[47] Testimony of
Herbst.
[48] Testimony of
Patch; Ex. PH5.
[49] Testimony of R. Thielen.
[50] Exs. PH1 and
PH2.
[51] Exs. PH8 and PH9.
[52] Testimony of
Posusta; Exs. PH8, PH9, and PH17.
[53] Exs. PH8 and PH17; Testimony of Posusta, B.
Thielen.
[54] Ex. PH8 at 5.
[55] Ex. PH 8.
[56] Testimony of
Patch.
[57] Testimony of
R. Thielen.
[58] Ex. PH1
(italics added).
[59] Testimony of
R. Thielen, Patch, and B. Thielen.
[60] Testimony of
Patch and B. Thielen.
[61] Ex. PH2.
[62] Ex. PH1
(italics added).
[63] Testimony of
Patch and R. Thielen.
[64] Testimony of
Wojchouski.
[65] Testimony of
Wojchouski.
[66] Testimony of
Posusta; F. Patch, and L. Patch; Ex. PH12.
[67] Testimony of
Posusta; Ex. PH12.
[68] Testimony of
F. Patch.
[69] Testimony of
Posusta and L. Patch; Ex. PH12.
[70] Ex. PH12.
[71] Testimony of
Wojchouski and R. Thielen.
[72] Testimony of
R. Thielen.
[73] Ex. PH2.
[74] Testimony of
F. Patch; Exs. PH1 and PH2.
[75] Testimony of
Posusta; Ex. PH12.
[76] Ex. PH12.
[77] Minn. Stat. §
211B.01, subd. 2.
[78] Ex. PH1.
[79] Minn. Stat. §
211B.32, subd. 4.
[80] The check
should be made payable to “Treasurer, State of
[81] The check
should be made payable to “Treasurer, State of
[82] Minn. Stat. §
211B.01, subd. 2.
[83] New York Times v. Sullivan, 376
[84] See St.
Amant v. Thompson, 390
[85] St. Amant, 390 U.S. at 732; Eastwood v. National Enquirer, Inc., 123
F.3d 1249, 1253 (9th Cir. 1997) (“As we have yet to see a defendant
who admits to entertaining serious subjective doubt about the authenticity of
an article it published, we must be guided by circumstantial evidence.”).
[86] St. Amant, 390
[87] See In
re Charges of Unprofessional Conduct Involving
File No. 17139, 720 N.W.2d 807, 815-16 (
[88] Stokes v. CBS, Inc., 25 F.Supp.2d 992, 1003 (D.
[89]
[90] See Fine v. Bernstein, No. A05-2393, slip op. at 15 (Minn. App. Jan. 23, 2007); Phipps v. Clark Oil & Refining Corp., 396 N.W.2d 588, 594 (Minn. App. 1987) (citing Tawney v. Simonson, Whitcomb, & Hurley Co., 109 Minn. 341, 124 N.W. 229 (1909)); Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 442 (Minn. App. 1986). See also Stokes, 25 F. Supp. 2d at 998.
[91] Ex. PH8, page
5 (emphasis added).
[92] Ex. PH8 at p. 5.
[93] Black’s Law Dictionary (6th
ed. 1999).
[94]
[95] Merriam-Webster Online Dictionary.
[96] Fine v. Bernstein, slip op. at 15.
[97] St. Amant v. Thompson, 390