Scheibel v. Pavlak

• Decision Date: 11 May 1979
• Docket Number: No. 49713.,49713.
• Citation: 282 NW 2d 843,176 Minn. 284
• Parties: In the Matter of the Contest of General Election Held on November 7, 1978, for the Purpose of Electing a State Representative in the Counties of Ramsey and Dakota, State of Minnesota. James SCHEIBEL, et al., contestants, Appellants, Thomas Quinlan, et al., contestants, v. Robert PAVLAK, contestee, Respondent.
• Court: Minnesota Supreme Court

282 N.W.2d 843 (1979)

In the Matter of the Contest of General Election Held on November 7, 1978, for the Purpose of Electing a State Representative in the Counties of Ramsey and Dakota, State of Minnesota.

James SCHEIBEL, et al., contestants, Appellants, Thomas Quinlan, et al., contestants, v. Robert PAVLAK, contestee, Respondent.

No. 49713.

Supreme Court of Minnesota.

May 11, 1979.

Leonard & Weinblatt and Alan W. Weinblatt, St. Paul, for appellants.

O'Neill, Burke & O'Neill and Patrick H. O'Neill, St. Paul, Michael J. Bolen, Edina, for respondent.

Heard, considered and decided by the court en banc.

SHERAN, Chief Justice.

This is an appeal from an order of the District Court of Ramsey County dismissing proceedings instituted by voters residing in House of Representatives District 67A to contest the election of Robert Pavlak to the office of representative in that district on November 7, 1978. Contestants charged Mr. Pavlak with knowingly permitting the distribution of a campaign brochure on his behalf which contained false information with respect to the voting and attendance record of the incumbent, Arnold Kempe.

District 67A of the Minnesota House of Representatives consists of eight precincts in St. Paul proper, Ramsey County, and four precincts in West St. Paul, Dakota County. Mr. Pavlak was elected to that office in 1966, 1968, 1970 and 1972 as an Independent-Republican. In 1974 Mr. Kempe, running as a member of the Democratic Farmer Labor Party, defeated Mr. Pavlak by 200 votes and retained that office until the November 7, 1978, election when Mr. Pavlak was again his opponent. Early in October, 1978, Mr. Pavlak was invited to an interview by William G. Sumner, Editor of the St. Paul Dispatch. Mr. Pavlak brought with him to that interview records which he had compiled of Mr. Kempe's attendance and his roll call voting absences in the House of Representatives during the years 1977 and 1978. Those records showed that Mr. Kempe missed over 300 roll call votes during that period. Mr. Sumner was provided with a photostatic copy of the research done by Mr. Pavlak and was warned by Mr. Pavlak that there might be errors in his computation.

Several weeks later on Saturday, November 4, 1978, about 8:00 a. m. Mr. Pavlak read the editorial in the St. Paul Pioneer Press-Dispatch which stated in part: "We have seen nothing to dispute his Mr. Pavlak's research report that shows the incumbent voted four times in 1967-68 — this out of more than 300 opportunities." Mr. Pavlak immediately called the Dispatch, was unable to reach Mr. Sumner but advised the city desk that there was an error in the editorial.

The actual error in the editorial was the claim that Mr. Kempe participated in only four out of 329 roll call votes in two sessions, whereas he had cast 1,469 roll call votes and missed only 329. This, however, was not the error which Mr. Pavlak wished to call to Mr. Sumner's attention. The error which he wished to call to Mr. Sumner's attention was the fact that the editorial referred to the year 1967-68 rather than 1977-78. It was also his intention to secure an explanation of the editorial's reference to Mr. Kempe's four votes out of 300 opportunities which Mr. Pavlak stated he did not understand and no one at the paper was available to explain. He left his name and number so that Mr. Sumner could call him back.

Although Mr. Pavlak did not understand the editorial's reference to four votes out of 300 opportunities, he testified that he accepted that information because he believed the newspaper "was privileged to know something" that he did not know. Although he had not furnished Mr. Sumner with that information he relied on the fact that the newspaper had a staff of editorial writers and reporters to do their own research.

Between 9:00 a. m. and 10:00 a. m. on Saturday, November 4, Mr. Pavlak's campaign manager, James Aydt, called and, characterizing the editorial as an endorsement, asked Mr. Pavlak whether it should be reprinted. Mr. Pavlak referred him to Robert Larson who was handling the preparation of campaign literature, pointing out that there was an error with respect to the paper's reference to the years 1967 and 1968. He did not discuss the editorial's reference to four votes out of 300 opportunities. Mr. Aydt thereupon called Mr. Larson and discussed the editing, reprinting and distribution of the editorial. They agreed on the marginal statement "Even with the papers `typo' the message about our opponent is clear!" The typographical mistake to which Mr. Aydt referred in that conversation was the wrong year. Mr. Larson, on the other hand, testified that the only mistake he was flagging was the fact that the editorial credited Mr. Kempe with four votes and Mr. Larson thought Mr. Sumner actually meant by that particular statement "No times, this out of more than 300 opportunities" because the whole thrust of the campaign, Mr. Larson stated, ultimately boiled down to the 300 missed votes. In short, there is no evidence that either Mr. Pavlak, Mr. Aydt or Mr. Larson intended to alert the public to the possibility that the statement concerning Mr. Kempe's voting record might be false.

That afternoon Mr. Aydt took the editorial with the marginal comment and the relevant paragraph circled in ink for reprinting. He had 6,000 copies prepared and available by 5:30 p. m., at which time he delivered them to Mr. Pavlak.

Between 5:30 p. m. Saturday, November 4, and 8:00 p. m. on Monday, November 6, between 1,800 and 1,900 reprints and other materials were distributed in three St. Paul precincts and two West St. Paul precincts, including several hundred placed on the windshields of cars of those attending four area churches on Saturday afternoon and Sunday morning.

On Monday, November 6, a second editorial appeared in the St. Paul Dispatch stating —

"* * * we erred in our endorsement of Robert Pavlak, IR, who is seeking to unseat Rep. Arnold Kempe in 67A. Pavlak\'s research report stated Kempe voted four times during the years 1977-78, not, as incorrectly reported, 1967-68."

Mr. Kempe testified that he read the November 6 editorial in the evening Dispatch, which prompted him to find and for the first time read the editorial in the November 4 Dispatch. At 5:30 p. m. Monday he called Mr. Tom Carlin, the publisher, and advised Carlin that the editorial was a fraud, that the reporters knew it was wrong and demanded an immediate retraction. That same evening, David Nitti, Mr. Kempe's campaign manager, brought to Mr. Kempe's home a package of Mr. Pavlak's campaign material which included a copy of the edited November 4 editorial. Mr. Kempe testified that to the best of his recollection this was the first time he had seen it. Although Mr. Kempe could not recall having read the original editorial on November 4, and testified that he rarely read the editorial page, three of his campaign workers testified that they had called Mr. Kempe's attention to the editorial on Saturday the 4th and Sunday the 5th. David Nitti stated that he met Mr. Kempe on the street on Saturday and Mr. Kempe had expressed the opinion that the endorsement of Mr. Pavlak was damaging. Mr. Nitti told Mr. Kempe that the paper misrepresented Mr. Kempe's voting record.

James Scheibel, one of the contestants, was not sure what day he had spoken to Mr. Kempe about the November 4 editorial but was of the opinion it could have been on Sunday the 5th. Thomas Quinlan talked to Mr. Kempe Saturday morning the 4th, after seeing the endorsement in the morning edition of the Dispatch, and testified "We probably did discuss the error in the newspaper concerning the voting record, too." It is the contention of the respondent that having knowledge of the November 4 editorial on the day it appeared, it was Mr. Kempe's duty to mitigate the damage by immediately demanding a retraction. Not having done so, it is argued that Mr. Kempe himself regarded the editorial as being neither a serious nor a material violation of the election law.

On Tuesday, November 7, 1978, Mr. Pavlak was elected by a margin of 321 votes, 4,454 to 4,133.

On November 24, 1978, a group of District 67A voters brought suit to vacate the election on the grounds that the reprint contained "false information" within the meaning of section 210A.04 of the Minnesota election law.¹ According to Minn.St. 209.02, any violation of an election law provision such as § 210A.04 is grounds for nullifying an election if it is "deliberate, serious, and material."²

From December 4 through December 7, the parties, acting pursuant to Minn.St. 209.02, subd. 4a,³ chose a mutually acceptable district judge to hear the case by striking off names of available judges until one remained. Judge Robert Breunig of the First Judicial District was selected.

Trial was held during the end of December, 1978, and the trial judge issued his dismissal of the contest on January 2, 1979. The contestants appealed on January 12, 1979, as provided for by Minn.St. 209.09.⁴ According this case the expedited consideration required by Minn.St. 209.09, this court heard oral argument on March 5, 1979. The argument was primarily on the merits of the case; the parties did not brief nor argue directly the constitutional propriety of this court acting in this matter. However, research conducted by the court in its subsequent consideration of the case revealed a substantial issue of whether the court was free to take any action at all. Accordingly, the court issued its order of April 26, 1979, providing the parties an opportunity to present their views on the question. This hearing was held on May 3, 1979.

I. To begin with, there is no question of the Legislature's final authority in this matter. The constitutional directive is explicit:

"Each house shall be the judge of the election returns and eligibility of its own members." Minnesota Constitution, Article IV, Section 6.

The privilege of a legislature to judge the eligibility of...