Lewison v. Hutchinson, A18-1700

• Decision Date: 13 May 2019
• Docket Number: A18-1700
• Citation: 929 N.W.2d 444
• Parties: Alex LEWISON, Respondent, v. David HUTCHINSON, et al., Relators, Office of Administrative Hearings, Respondent.
• Court: Minnesota Court of Appeals

929 N.W.2d 444

Alex LEWISON, Respondent,

v. David HUTCHINSON, et al., Relators,Office of Administrative Hearings, Respondent.

A18-1700

Court of Appeals of Minnesota.

Filed May 13, 2019

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for respondent Alex Lewison)

Alan W. Weinblatt, Wienblatt & Gaylord, PLC, Inver Grove Heights, Minnesota (for relators)

Keith Ellison, Attorney General, Nathan James Hartshorn, Assistant Attorney General, St. Paul, Minnesota (for respondent Office of Administrative Hearings)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Bjorkman, Judge.

BJORKMAN, Judge

Relators, a political candidate and his campaign committee, challenge an order of the Minnesota Office of Administrative Hearings (OAH) determining that they prepared and disseminated campaign material without the disclaimer required by Minn. Stat. § 211B.04, subd. 1. Relators argue that (1) the disclaimer requirement violates the right to free speech, (2) the complaint alleging the violation was untimely, and (3) substantial evidence does not support the determination that relators violated the disclaimer requirement. We affirm.

FACTS

In March 2017, relator David Hutchinson was contemplating running for Hennepin County Sheriff. He began collecting campaign contributions and created a "Hutch for Sheriff" Facebook page. He also paid a printing company to prepare four "prototype" lawn signs that read: "Elect HUTCH for Hennepin County Sheriff." Hutchinson posted a picture of the signs on Facebook. He also gave one to his father, who placed it in the front lawn of the Medina residence he rents from Hutchinson’s brother, and one to a friend, who placed the sign in the front lawn of his Minneapolis residence. The other two signs remained in Hutchinson’s garage.

On December 18, 2017, Hutchinson filed his candidacy and registered his campaign committee, relator Hutch for Sheriff. Hutchinson and his committee (collectively, Hutchinson) thereafter ordered more than 1,000 campaign signs bearing substantially the same message as the original four, as well as a disclaimer: "Paid for and prepared by the Hutch for Sheriff volunteer committee."

The following August, respondent Alex Lewison, the deputy treasurer of then-Sheriff Rich Stanek’s volunteer campaign committee, saw the two posted signs that lacked disclaimers. The signs remained in place through the primary election. On August 22, 2018, Lewison filed a complaint with the OAH alleging that Hutchinson violated Minn. Stat. § 211B.04, subd. 1, by preparing and disseminating campaign material that lacked a disclaimer.¹ A panel of three administrative law judges conducted an evidentiary hearing and determined that Hutchinson violated the disclaimer requirement. Because the violation was inadvertent and had "minimal impact on voters," the OAH imposed a civil penalty of $ 200. Hutchinson appeals by writ of certiorari.²

ISSUES

I. Does the disclaimer requirement violate Hutchinson’s free-speech rights?

II. Was the complaint timely?

III. Does substantial evidence support the determination that Hutchinson violated Minn. Stat. § 211B.04 ?

ANALYSIS

The OAH is charged with deciding claims of unfair campaign practices. Minn. Stat. § 211B.32, subd. 1(a) (2018). On appeal, we presume the OAH’s decision is correct. Fine v. Bernstein , 726 N.W.2d 137, 142 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007). We will reverse or modify the decision only if the relators’ substantial rights have been prejudiced because the decision is affected by an error of law, unsupported by substantial evidence, or arbitrary or capricious. Minn. Stat. § 211B.36, subd. 5 (2018) (providing for judicial review under Minn. Stat. § 14.69 (2018) ).

Minnesota law requires "any person who participates in the preparation or dissemination of campaign material" to "prominently include the name and address of the person or committee causing the material to be prepared or disseminated," in accordance with prescribed disclaimer language. Minn. Stat. § 211B.04, subd. 1(a). The requirement applies only to those subject to political registration or reporting laws. Id. , subd. 3(b). "Campaign material" is defined as "any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election." Minn. Stat. § 211B.01, subd. 2 (2018). A person subject to the disclaimer requirement who fails to include a disclaimer on campaign material is guilty of a misdemeanor. Minn. Stat. § 211B.04, subd. 1(a).

I. The disclaimer requirement does not violate Hutchinson’s free-speech rights.

The constitutionality of a statute is a question of law, which we review de novo.³ Linert v. MacDonald , 901 N.W.2d 664, 667 (Minn. App. 2017). "While statutes generally carry a presumption of constitutionality, a statute restricting speech does not; the burden rests with the government to demonstrate that such a statute is constitutional." Id. Nonetheless, we exercise our "power to declare a statute unconstitutional ... with extreme caution and only when absolutely necessary." State v. Hall , 887 N.W.2d 847, 852 (Minn. App. 2016) (quotation omitted), review denied (Minn. Feb. 22, 2017).

Hutchinson argues that the disclaimer requirement violates his First Amendment right to free speech, citing this court’s decision invalidating the 2006 version of section 211B.04, Riley v. Jankowski , 713 N.W.2d 379 (Minn. App. 2006), review denied (Minn. July 19, 2006), and the Supreme Court’s decision in McIntyre v. Ohio Elections Comm’n , 514 U.S. 334, 115 S. Ct. 1511, 131 L.Ed.2d 426 (1995), on which Riley relied. This argument is unavailing. Those cases concerned the right of independent actors to speak freely—and, if desired, anonymously—on political issues. McIntyre , 514 U.S. at 354-55, 115 S. Ct. at 1523 ; Riley , 713 N.W.2d at 404. But this case involves a political candidate and his campaign committee, not an independent actor.

With respect to political candidates, the United States Supreme Court has long recognized the validity of disclosure and disclaimer requirements. Buckley v. Valeo , 424 U.S. 1, 66, 96 S. Ct. 612, 657, 46 L.Ed.2d 659 (1976). The Buckley Court reasoned that, while such requirements burden free speech, they are permissible because they serve important governmental interests in: (1) "provid[ing] the electorate with information as to where political campaign money comes from and how it is spent by the candidate," (2) avoiding corruption, and (3) detecting campaign-finance violations. Id. at 66-68, 96 S. Ct. at 657-58 (quotation omitted). The Court affirmed this principle in McIntyre , even while recognizing that these governmental interests are not implicated by the political speech of independent actors.

514 U.S. at 351 n.14, 354-55, 115 S. Ct. at 1521 n.14, 1522-23. And the Court has since reiterated, in upholding the federal disclaimer statute, 2 U.S.C. § 441d (2006),⁴ that disclosure and disclaimer laws are a permissible means of informing the electorate "about the sources of election-related spending." Citizens United v. Fed. Election Comm’n , 558 U.S. 310, 366, 130 S. Ct. 876, 914, 175 L.Ed.2d 753 (2010) (citing Buckley , 424 U.S. at 64, 66, 96 S. Ct. at 656, 657 ). Such requirements "may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking." Id. (quotations and citations omitted).

Consistent with Buckley and Citizens United , the current version of Minn. Stat. § 211B.04 expressly limits its reach to those "required to register or report under chapter 10A or 211A."⁵ Minn. Stat. § 211B.04, subd. 3(b). This includes political candidates and campaign committees that accept or spend at least $ 750. Minn. Stat. § 211A.02 (2018). Hutchinson does not dispute that, by December 2017, he and his campaign committee were subject to those reporting and registration requirements.

Rather, Hutchinson contends that the disclaimer requirement unfairly burdens a first-time candidate such as himself. We disagree. Every political candidate must know—indeed, is presumed to know—the laws governing campaign practices, which are published in publicly available statutes. See Carlson v. Ritchie , 830 N.W.2d 887, 892 (Minn. 2013) (presuming that candidate was aware of political party caucus requirements). Difficulty learning the applicable laws does not make compliance with the laws themselves unfairly onerous. And equal application of those laws is the only way to further their substantial governmental purposes.

In sum, Minn. Stat. § 211B.04 imposes only the type of limited disclaimer requirement long permitted as a means of informing the electorate about the election-related spending of certain political actors. Because Hutchinson and his campaign committee are such actors, their challenge to the statute’s constitutionality fails.

II. The complaint alleging a continuing violation of Minn. Stat. § 211B.04 was timely.

Claims of unfair campaign practices must be filed with the OAH "within one year after the occurrence of the act or failure to act that is the subject of the complaint." Minn. Stat. § 211B.32, subd. 2 (2018). The construction and application of a statute of limitations are questions of law, which we review de novo. Park Nicollet Clinic v. Hamann , 808 N.W.2d 828, 831 (Minn. 2011).

A statute of limitations begins to run once "all of the elements of the action have occurred, such that the cause of action could be brought and would survive a motion to dismiss for failure to state a claim." Id. When that occurs depends on "the nature of the wrongful conduct at issue." Id. at 837. But a statute of limitations does not run if the wrongful conduct is part of "a continuing violation." Sigurdson v. Isanti County , 448 N.W.2d 62, 66 (Minn. 1989).

The claimed wrongful conduct here is Hutchinson’s "dissemination" of lawn signs that did not contain disclaimers.⁶ Chapter 211B does not define "dissemination." But co...