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On December 24, 2008, the parties in 281 Care Comittee, et al. case completed their cross-motions for summary judgment in U.S. District Court. U.S. District Court Judge Rosenbaum has scheduled the case for hearing on February 6, 2009. This case is the same one chosen by Minnesota Journal of Law and Politics as one of its lawsuits of the year. Minnesota Statute 211B.06 bans false information in written campaign materials. Under current law, such written materials are cause for a complaint filed in the Office of Administrative Hearings and discretionary criminal prosecution. The plaintiffs assert that the statute is unconstitutinally overbroad because it includes non-defamatory speech and that the statute is so unconstitutionally underinclusive -- not including verbal, radio and television communications -- that it serves no legitimate state interest. The history of the statute's predecessors dates back to 1893. The first derivates made false information in written campaign materials a cause for an election contest seeking to oust the elected candidate and a cause for a criminal prosecution. From 1893 to 1988 when the statute was amended, there were approximately 10 published Minnesota Supreme Court opinions regarding election contests -- but none regarding criminal prosecutions. In 1988, the statutes were amended. Apparently, after 90 years, the courts did not want jurisdiction over election contests brought by losers who claimed that the winners had lied during the campaign and should be ousted from office as a result. Thus, the 1988 amendments made criminal prosecution mandatory and reduced the role of the election contest by stating that forfeiture of office would only occur after a successful prosecution as a supplemental proceeding. The county attorneys were required to bring the criminal prosecutions under 211B.06 under statutory threat of forfeiture of office. From 1988 throug 2004 when the statute was further amended, there was only one published case. This published opinion dealt with the prosecution of former Hennepin County Commissioner and Congressional Candidate Tad Jude under statute 211B.06. Tad Jude won the appeal on the statute's unconstitutionality. Nonetheless, after the 2002 campaign, county prosecutors struck again. State legislative candidate Greg Copeland was prosecuted for writing that he was the "only pro-lifer" in the race. Hennepin County Commissioner candidate John Knight was prosecuted for writing that he was the "only Republican" in the race. John Knight's prosecution led to the Republican Party 3rd CD filing a lawsuit in federal court to protect its prerogatives regarding determination of who was a GOP member and who was not a GOP member. In 2004, the statute was again amended. This time the prosecutors led the charge because they did not want the mandatory prosecution any more. The innovation was that a new procedure would be created where citizens could bring their complaints of false information in written campaign materials before the Office of Administrative Hearings ("OAH"). Thus, the criminal prosecutions would again be discretionary. The result has been a tsunami of OAH complaints under 211B.06. From 1893 to 2004, there were approximately 10 published decision under 211B.06 and its predecessors. Since 2004, there have been over 20 published decisions by OAH. Recently, OAH dismissed a complaint brought by U.S. Senator Norm Coleman against Al Franken for campaign materials indicating a bipartisan group had found Coleman one of the four most corrupt U.S. Senators. Attorney Erick Kaardal comments, "Minnesotans should be embarassed of their democracy. Minnesota Statute 211B.06 allows prosecutions of political speech -- expressly protected by the U.S. Constitution's First Amendment. It is the worst kind of government censorship. We are hopeful that the U.S. District Court will see it our way -- cleansing Minnesota's democracy of unnecessary and unconstitutional litigation." The U.S. District Court hearing on the motions is scheduled for February 6, 2009. The public is invited. |
