Harry Niska v. Bonn Clayton. MN Fair Campaign Practices
Bonn Clayton served on the First Judicial District Republican Committee and the Judicial District Republican Chairs Committee which was formed in 2005. The 2012 Republican State Convention, although it initially voted to make judicial endorsements, reconsidered the vote and overturned the decision. Therefore, it made no endorsements, even though Clayton favored endorsing Tim Tingelstad in his run against Supreme Court Justice David Stras.
A few months after the convention, on October 18, 2010, Clayton sent an e-mail to about 7000 Minnesota Republicans. That e-mail included a link to a website and stated that "we currently have the names of our three recommended candidates for Supreme Court. That e-mail was signed as follows:
Bonn Clayton, Convener
Judicial District Republican Chairs
Republican Party of Minnesota
The associated website said that it "strongly recommended" that Republicans vote for three supreme court candidates, although it was careful not to use the words "endorse" or "endorsement". The website claimed that it was sponsored by "Republican Party of Minnesota - Judicial District Chairs Committee" and that it was "prepared and paid for by: Republican Party of Minnesota - Judicial District Republican Chairs." Clayton's name was at the bottom, with the words "Republican Party of Minnesota" underneath.
In response to confused inquiries, the state Republican party sent out an e-mail the next day reiterating that it had not endorsed any candidates for supreme court. The Clayton website was shut down for a few days, but Clayton sent out another e-mail on October 28 announcing that the site was back up. This e-mail was a bit more carefully worded, but still indicated that it was a product of the Republican Party of Minnesota.
Despite protests from the state party, Clayton continued to send out e-mails. One of those e-mails urged voters to vote for Dean Barkley against Justice Barry Anderson. That e-mail asserted that Justice Anderson had voted against Governor Pawlenty in the case Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010). That statement was false.
Harry Niska, a Republican state convention delegate, filed a complaint with the Office of Administrative Hearings. Niska alleged that these statements were false and violated the Minnesota Fair Campaign Practices Act. A three-judge panel agreed, and fined Clayton $1200. Dissatisfied with that turn of events, Clayton brought an appeal to the Minnesota Court of Appeals.
On appeal, Clayton first argued that Niska lacked standing to bring the complaint. He also alleged that the statutes under which he was fined were unconstitutional.
The appeals court, in an unpublished opinion authored by Judge Kevin G. Ross, agreed with Clayton on one point, but affirmed the administrative law judges on anther violation. The court first noted that the Campaign Practices Act does not have any limitations as to who may file a complaint, and held that Niska had standing to do so.
Clayton, apparently after reading the Supreme Court's opinion, admitted that his assertion about Justice Anderson's vote was false. But he argued that he did not act with reckless disregard for the truth. Clayton called witnesses who shared his confusion, apparently resulting from the fact that there were two Justices named Anderson on the court, and that "an Anderson voted for it and an Anderson voted against it." Clayton testified that he had never actually read the decision, and couldn't recall the exact newspaper article on which he claimed to base his erroneous belief.
The court agreed with Clayton that the "the statute does not prohibit political advertisements that reflect mere flippancy or even negligence as to truth." Instead, the statute requires actual malice. The court held that this standard was not met merely because "a person never read the newspaper account that he cites to support his erroneous belief." For this reason, the court reversed the finding of a violation regarding the false statement about Justice Anderson's vote.
The court then considered Clayton's argument that the statute regarding the endorsement was unconstitutional. The court rejected this argument. It first noted that false statements of fact have little First Amendment protection. The court went on to hold that the statute was valid, since it "unambiguously seeks to protect the electorate from false statements of organizational and individual political endorsement."
For these reasons, the Court of Appeals affirmed in part and reversed in part.
(Editor's Note: I was a seated alternate at the 2012 convention and was one of those voting against making judicial endorsements. I also was one of the people who received all or most of these e-mails. --RPC)
No. A13-0622 (Minn. Ct. App. Mar. 10, 2014).
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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