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Lewison v. Hutchinson

Court of Appeals of Minnesota

May 13, 2019

Alex Lewison, Respondent,
v.
David Hutchinson, et al., Relators, Office of Administrative Hearings, Respondent.

          Office of Administrative Hearings File No. 68-0325-35511

          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.

         SYLLABUS

         1. The disclaimer requirement in Minn. Stat. § 211B.04 (2018) is a constitutionally permissible restraint on the speech of political candidates and their campaigns.

         2. When a person subject to the disclaimer requirement in Minn. Stat. § 211B.04 places nonconforming campaign materials on continuous public display, or distributes nonconforming campaign materials for continuous public display, the person commits a continuing violation for as long as the materials are on display.

          OPINION

          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 ...


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