October 24, 2022

VIA EMAIL ONLY VIA US MAIL & EMAIL

R. Reid LeBeau II Chelsey Perkins
The Jacobson Law Group Matt Erickson
180 E Fifth St Ste 940 Brainerd Dispatch
St. Paul, MN 55101 506 James St
[email protected] Brainerd, MN 56401
[email protected]
[email protected]

VIA US MAIL & EMAIL VIA US MAIL & EMAIL

Hara Charlier Jon W. Lubke
Central Lakes College 34013 N Oak Dr
501 W College Dr Jenkins, MN 56472
Brainerd, MN 56401 [email protected]
[email protected]

Re: In the Matter of Robin M. Sylvester (Jon W. Lubke Campaign, Central

Lakes College, Brainerd Dispatch, Chelsey Perkins, Matt Erickson)
OAH 8-0325-38753

Dear Parties:

Enclosed and served upon you please find the ORDER FINDING NO PRIMA
FACIE VIOLATION AND DISMISSING COMPLAINT in the above-entitled matter.

If you have any questions, please contact me at (651) 361-7857,

[email protected], or via facsimile at (651) 539-0310.

Sincerely,

NICHOLE HELMUELLER
Legal Assistant

Enclosure

cc: Docket Coordinator

 OAH 8-0325-38753

STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS

Robin M. Sylvester,
ORDER FINDING NO PRIMA
Complainant, FACIE VIOLATION AND
DISMISSING COMPLAINT
vs.

Jon W. Lubke Campaign, Central Lake

College (by and through its President, Hara
Charlier), Brainerd Dispatch (by and through
its editors Chelsey Perkins and Matt
Erickson),

Respondents.

On October 19, 2022, Robin M. Sylvester (Complainant) filed a Fair Campaign

Practices Complaint (Complaint) with the Office of Administrative Hearings. The
Complaint alleges that the Respondents violated various provisions of state law through
production of, or reporting on, a particular campaign brochure.

The Chief Administrative Law Judge assigned this matter to the undersigned
Administrative Law Judge pursuant to Minn. Stat. § 211B.33 (2022).

After reviewing the Complaint, and for the reasons set forth in the attached
Memorandum, the undersigned Administrative Law Judge finds that the Complaint does
not establish a prima facie violation of Minn. Stat. §§ 211B.02, 211B.06 or 211B.15
(2022) and that the claims under Minn. Stat. §§ 10A.01 and 16A.275 (2022) are beyond
this tribunal’s subject-matter jurisdiction.

Based upon the record in this case, the Administrative Law Judge issues the
following:

ORDER

The Complaint filed by Robin M. Sylvester against Jon W. Lubke Campaign,

Central Lake College (by and through its President, Hara Charlier), and the Brainerd
Dispatch (by and through its editors Chelsey Perkins and Matt Erickson) is DISMISSED.

Dated: October 24, 2022

___________________________
ERIC L. LIPMAN
Administrative Law Judge
 NOTICE

Under Minn. Stat. § 211B.36, subd. 5 (2022), this Order is the final decision in
this matter. A party aggrieved by this decision may seek judicial review as provided in
Minn. Stat. §§ 14.63-.69 (2022).

MEMORANDUM

I. Factual Background

Robin Sylvester and Jon W. Lubke are candidates for election as a member of
the Crow Wing County Board of Commissioners from District 2.1

The Complaint maintains that Erich J. Heppner, the Director of Student Life at
Central Lakes College, is a member of the “Jon W. Lubke for Crow Wing County”
campaign committee.2 The Complaint further alleges that in mid-September of 2022,
Mr. Heppner arranged with the print shop of Central Lakes College to produce a
campaign mailer on behalf of the Lubke campaign.3 The mailer urged voters in District 2
to cast a ballot for Mr. Lubke in the General Election.4

As detailed in Figures 1 and 2 below, the top right corner of one side of the
printed mailer includes a disclaimer identifying the Lubke campaign committee as the
author of the mailer and a postage permit number. The permit belongs to Central Lakes
College:5

Figure 1 Figure 2

On October 14, 2022, the Brainerd Dispatch wrote a news story about the use of
the Central Lakes College bulk mailing permit to send the mailer.6 The story was written
by the Dispatch’s Community Editor, Chelsey Perkins.7 The story notes Mr. Lubke’s

1
Complaint at 1, 13.
2
Id. at 3.
3
Id. at 3-5, 9, 14, 20, 27.
4
Id. at 33-34.
5
Id. at 14, 23-26.
6
Id. at 9.
7
Id.
[181840/1] 2
denial that use of the college’s bulk mailing privileges was intentional or that his
campaign received lower postage rates than other candidates.8 Moreover, the story
printed Mr. Lubke’s claim that use of the college’s mailing permit was a “mistake.”9

Ms. Sylvester alleges that Ms. Perkins’ conduct when writing the story was
unlawful on the grounds that “the Dispatch provided Lubke additional media attention
without researching any facts and skewing their message in favor of Lubke.”10
Ms. Sylvester asserts that the reporting was tantamount to an advertisement in favor of
Mr. Lubke’s candidacy, and therefore an illegal corporate contribution to Mr. Lubke’s
campaign.11

II. Standard for Prima Facie Determinations

To establish a prima facie violation of the Fair Campaign Practices Act, the
complainant must allege enough facts to show that a violation of law has occurred.12
The complaining party must submit evidence or allege facts that, if accepted as true,
would prove a violation of Minn. Stat. §§ 211A.01-.14, 211B.01-.37 (2022).13

For purposes of a prima facie determination, this tribunal must accept the facts
that are alleged in the Complaint, without independent substantiation, provided that
those facts are not patently false or inherently incredible.14

When determining whether a complaint alleges sufficient facts to state a prima

facie case, reasonable inferences must be drawn in the light most favorable to the
complainant.15 A complaint is dismissed at the initial review stage only if it does not
allege facts that, if accepted as true, would prove a violation of Minn. Stat.
§§ 211A.01-.14, 211B.01-.37.16 If there is enough evidence to support a prima facie
determination, the Administrative Law Judge must set the case on for additional
proceedings.17

III. Minn. Stat. §§ 10A.01 and 16A.275 – Improper Expenditures

Claims that one or more of the Respondents violated Minn. Stat. §§ 10A.01,
16A.275 (2022) are not claims under the Fair Campaign Practices Act. With some
exceptions, that are not applicable here, campaign complaints are cognizable by this
tribunal only if they allege a violation of Chapter 211A or 211B.18 Thus, to the extent that
the Complaint includes claims of violations of Minn. Stat. §§ 10A.01 and 16A.275, those
claims are dismissed for lack of subject-matter jurisdiction.

8
Id. at 10-11.
9
Id. at 11.
10
Id. at 4.
11
Id.
12
Minn. Stat. § 211B.32, subd. 3.
13
See Barry v. St. Anthony-New Brighton Indep. Sch. Dist. 282, 781 N.W.2d 898, 902 (Minn. Ct. App.
2010).
14
Id.
15
Abrahamson v. St. Louis Cnty. Sch. Dist., 819 N.W.2d 129, 136 (Minn. 2012).
16
Barry, 781 N.W.2d at 902.
17
Minn. Stat. § 211B.33, subd. 2.
18
Minn. Stat. § 211B.32, subd. 1.
[181840/1] 3
IV. Minn. Stat. § 211B.06 – False Political and Campaign Material

The Complaint alleges that use of the college’s bulk mailing permit implies that
Mr. Lubke has the endorsement of Central Lakes College and that this claim is false.19
As Ms. Sylvester argues, the circulation of a mailer that contains false information
violates Minn. Stat. § 211B.06.

Even if one assumes that use of the mailer implies an endorsement from the
college, that no endorsement occurred, and that Mr. Lubke’s campaign team knew that
no endorsement occurred, this claim would still not be actionable under Fair Campaign
Practices Act. The prohibition on placing false information in campaign material in
Minn. Stat. § 211B.06 was declared void and unenforceable by the federal courts in
2014.20 A void statute cannot be the basis for relief. Thus, to the extent that the
Complaint includes a false literature claim under Minn. Stat. § 211B.06, that claim is
dismissed.

V. Minn. Stat. § 211B.15 – Contribution from Central Lakes College

The Complaint alleges that use of the college’s bulk mailing permit and
reduced-rate mailing privileges, was intentional, and amounted to an unlawful corporate
contribution in favor of Mr. Lubke’s campaign.21

Minn. Stat. § 211B.15 provides in relevant part:

(a) A corporation may not make a contribution . . . directly or

indirectly, of any money, property, free service of its officers, employees,
or members, or thing of monetary value to a . . . committee, or individual to
promote or defeat the candidacy of an individual for nomination, election,
or appointment to a political office.

(b) A political party, organization, committee, or individual may not

accept a contribution . . . that a corporation is prohibited from making
under paragraph (a).22

Even if one assumes that use of the college’s bulk mailing privileges conferred
“monetary value” on to the Lubke campaign, and was a deliberate choice on the part of
the college or the Lubke campaign, this particular transaction would still not be
actionable under Fair Campaign Practices Act. This is because Central Lakes College is
not, in fact, a corporation. Instead, Central Lakes College is a subunit of the Minnesota
State Colleges and University system and “an instrumentality of the State of
Minnesota.”23

19
Complaint at 4.
20
See 281 Care Committee v. Arneson, 766 F.3d 774, 789 (8th Cir. 2014), cert. denied 575 U.S.
912 (2015).
21
Complaint at 4.
22
Minn. Stat. § 211B.02.
23
City of Brainerd v. Brainerd Inves. P'ship, 812 N.W.2d 885, 887 (Minn. Ct. App. 2012), aff'd sub nom.
City of Brainerd v. Brainerd Investments P'ship, 827 N.W.2d 752 (Minn. 2013) (Central Lake College is
[181840/1] 4
 To make that observation is not to imply that it is permissible for government
entities to give public resources to political campaigns; it isn’t. The point is merely that
because Central Lakes College is not a corporation, any campaign activity by it is not
prohibited by Minn. Stat. § 211B.15. The statute simply does not reach such activity.
Accordingly, to the extent that the Complaint includes a claim of an improper corporate
contribution by Central Lakes College, the claim is dismissed.

VI. Minn. Stat. § 211B.15 – Contribution from the Brainerd Dispatch

As noted above, Ms. Sylvester asserts that the Brainerd Dispatch’s reporting on
the Lubke campaign’s use of the college’s bulk mailing permit was so lopsided that it
amounted to an illegal corporate contribution in favor Mr. Lubke’s campaign.24

The claim is legally problematic in two respects. First, it is doubtful that the
Brainerd Dispatch is a corporation. According to the business registry of the Minnesota
Secretary of State’s office, the Brainerd Dispatch is an “assumed name” for use in the
newspaper trade – and that tradename is held by the Forum Communications Company
of Fargo, North Dakota.25 A commercial assumed name can be held by individuals and
entities that are not corporations.26 As pled, the Complaint does not appear to name a
corporation as a respondent.

Even if one could assume that the Brainerd Dispatch was a corporation, or that a
proper corporate affiliate of the newspaper could later be joined as a respondent,
Minn. Stat. § 211B.15 would still not reach the conduct described in the Complaint. The
Minnesota Legislature anticipated such claims when it enacted this statute in 1988: It
specifically exempted “publication or broadcasting of news items or editorial comments
by the news media” from its prohibitions.27 Ms. Sylvester may decry the Brainerd
Dispatch’s journalism, its methods and its conclusions, but those disputes are not
actionable under the Fair Campaign Practice Act.

VII. Minn. Stat. § 211B.02 – False Claim of Support

Minn. Stat. § 211B.02 provides in relevant part:

A person or candidate may not knowingly make, directly or

indirectly, a false claim stating or implying that a candidate … has the
support or endorsement of … an organization.28

Taking each of the statutory requirements in turn, first, the Minnesota Court of
Appeals has held that governmental entities, like Central Lakes College, can qualify
under the Act’s broad definition of an endorsing “organization.”29

“an instrumentality of the State of Minnesota”); see generally Minn. Stat. § 136F.72 (2022).
24
Complaint at 4.
25
See https://mblsportal.sos.state.mn.us/Business/Search (last accessed October 21, 2022).
26
See Minn. Stat. § 331.01, subd. 2 (a “person” who can hold a commercial assumed name can be a
“one or more natural persons … a registered limited liability partnership, whether domestic or foreign; a
partnership; a limited partnership … a trust; or any other business organization”).
27
See 1998 Minn. Laws. Ch. 578, art. 2, § 2 (codified at Minn. Stat. § 211B.01, subd. 2).
28
Minn. Stat. § 211B.02.
[181840/1] 5
 Second, a close review of the Lubke campaign’s mailer reveals that it does not
“directly state” that Mr. Lubke’s election has the support or endorsement of Central
Lakes College. The only mention of the college is as part of the mailing permit detail. All
of the substantive claims are written in the first person, as if they were coming directly
from candidate Lubke. Moreover, neither the college, its mission, or higher education
generally, are referenced in the messages to voters.30

The much closer question is whether inclusion of the college’s name and bulk
mailing permit number “indirectly” assert that Mr. Lubke’s election has the support of
Central Lakes College. In the view of the Administrative Law Judge, the facts of this
case fall far short of those in City of Grant by and through Points v. Smith. In City of
Grant, a local political committee copied and used the masthead, logo and design
features of the city’s official newsletter when designing and circulating its own brochure
in support of particular ballot measures. As the appellate panel noted, the brochure as a
whole appeared as if it was a publication from the city, and not from the committee:

We have reviewed the exhibits as well and are struck by the

similarity of the [political committee's] literature to the city's printed
materials and website in ways that are difficult to describe in words but
surely were obvious to the person or persons responsible for sending
them.31

Even if one credits the claim that the mailing permit detail would be noticed by
ordinary readers, the element of “obviousness” is absent here. The mailer does not
impersonate Central Lakes College in the way the municipality was imitated in the City
of Grant. Further, apart from the postal permit, the mailer does not in any other way hint
that the college is responsible for the messages, supports Mr. Lubke’s election, or
rendered an endorsement in the District 2 commissioner race. In the view of the
Administrative Law Judge, the postal permit alone is not enough to imply an
endorsement by the permit holder or to summon an opposing political campaign to
court.

In this context, it bears emphasizing that the United States Supreme Court has
cautioned administrative tribunals, like the Office of Administrative Hearings, on their
use of the probable cause standard to regulate campaign-related speech. The Court
has expressed “particular concern” that use of very modest pleading standards can
permit private parties to “target” and distract their political opponents on the eve of an
election.32 In order to maintain a constitutional system of state campaign regulation,
Administrative Law Judges must be sensitive to the boundaries of the First Amendment.

29
City of Grant by and through Points v. Smith, A16-1070, 2017 WL 957717 at *5 (Minn. Ct. App.
Mar. 13, 2017) (unpublished) (“The common meaning of the word 'organization,' in the sense it is used in
section 211B.02, is '[a] group of persons organized for a particular purpose; an association,' or '[a]
structure through which individuals cooperate systematically to conduct business.' That definition does
not exclude a municipality or any other governmental entity.”) (citation omitted).
30
See Complaint at 33-34.
31
City of Grant by and through Points v. Smith, at *6.
32
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165–66 (2014) (“The burdens that Commission
proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General
[181840/1] 6
 For all of these reasons, the Administrative Law Judge concludes that the
Complaint does not state a prima facie claim for violation of Minn. Stat. § 211B.02.
Along with the remainder of the claims, this claim must likewise be dismissed.

E. L. L.

himself notes, the 'practical effect' of the Ohio false statement scheme is 'to permit a private
complainant ... to gain a campaign advantage without ever having to prove the falsity of a statement.'
'[C]omplainants may time their submissions to achieve maximum disruption of their political opponents
while calculating that an ultimate decision on the merits will be deferred until after the relevant election.'
Moreover, the target of a false statement complaint may be forced to divert significant time and resources
to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And
where, as here, a Commission panel issues a pre-election probable-cause finding, 'such a determination
itself may be viewed [by the electorate] as a sanction by the State.'”) (citations omitted); accord Toole v.
Kern, OAH 8-0320-38554, 2022 WL 3336587 at *3 (Minn. Off. Admin. Hrgs. 2022).
[181840/1] 7