*1 Mаtter of the Contest General Held on Election Electing Purpose Repre State Ramsey
sentative Counties of
Dakota, State of Minnesota. SCHEIBEL, al., contestants,
James et
Appellants, Quinlan, al., contestants,
Thomas et PAVLAK, contestee, Respondent.
Robert
No. 49713.
Supreme Court of Minnesota.
May *2 knowingly permitting the
Mr. Pavlak with on his of brochure distribution false which contained information behalf voting and attendance respect with to the incumbent, Kempe. Arnold record of House of 67A the Minnesota District eight precincts Representatives consists Ramsey County, and proper, Paul St. Paul, Dakota precincts four in West St. Mr. elected to that County. Pavlak was 1966, 1968, 1970 and 1972 as an office in Mr. Independent-Republican. member the Demo- Kempe, running as a Party, defeated Mr. cratic Farmer Labor office by Pavlak 200 votes and retained that 7, 1978, when until the election November again opponent. Early his Mr. Pavlak was October, 1978, Pavlak invited to Mr. was Sumner, Editor by an interview William G. Pavlak Dispatch. Mr. St Paul brought with to that interview records him Kempe’s of Mr. at- compiled which he had voting call absences in tendance and his roll during the Representatives House of years 1977 and 1978. Those records showed call that Mr. missed over 300 roll period. Mr. was votes Sumner photostatic copy provided was research done Mr. Pavlak and might be warned Mr. Pavlak that there computation. in his errors Novem- Saturday, Several weeks later a. m. Mr. Pavlak ber about 8:00 in the Pioneer read the editorial St. Paul Press-Dispatch part: “We Leonard W. Wein- which stated & Weinblatt and Alan blatt, Paul, nothing dispute have seen Pav- appellants. St. [Mr. report research that shows the incum- lak’s] O’Neill, Patrick H. Burke & O’Neill and in 1967-68—this out bent voted four times Edina, O’Neill, Paul, Bolen, Michael St. J. Mr. Pav- opportunities.” of more than 300 respondent. immediately Dispatch, called the lak but advised
unable reach Mr. Sumner an city desk that there was error editorial.
SHERAN, Justice. Chief The actual error in the editorial was only Kempe participated aрpeal This is an from an order of claim Mr. ses- Ramsey dismissing roll call votes in two County District four out Court of sions, roll call residing in whereas he had cast proceedings instituted voters however, This, Representatives House of District 67A to votes missed wished contest to the was not the error which Mr. Pavlak the election of Robert Pavlak The er- on to call to Mr. attention. representative office that district Sumner’s charged ror which he wished to call Mr. Sumner’s 1978. Contestants public possibility ed to alert the the editorial was the fact attention year concerning Kempe’s 1967-68 rather than Mr. referred to the the statement vot- his intention to secure 1977-78. It was also might be false. record editorial’s reference explanation Aydt Mr. That afternoon took the editori- Kempe’s oppor- four votes out of 300 to Mr. marginal and the rele- al with the comment Pavlak stated he did not tunities which Mr. *3 reprinting. ink paragraph vant circled in was paper understand and no one at the 6,000 copies prepared and He had available explain. He left his name and available to m., p. 5:30 at which time he delivered him number so that Mr. Sumner could call them to Mr. Pavlak. back. p. Saturday, m. Between 5:30 November Although Pavlak did not understand Mr. Monday, and November p. 8:00 m. on the editorial’s reference to four votes out 1,800 1,900 reprints between and other opportunities, he testified that he ac- in three materials were distributed St. Paul he cepted that information because believed precincts precincts, and two Paul West St. newspaper privileged the “was to know placed including several hundred on the Al- something” that he did not know. attending windshields of cars of those four though he had not furnished Mr. Sumner Saturday afternoon area churches with that he relied on the fact information Sunday morning. newspaper that the had a staff of editorial reporters writers and to do their own re- Monday, On November a second edito- search. Dispatch the Paul stat- appeared rial St. ing— Between 9:00 a. m. and 10:00 a. m. on “ * * * Saturday, Mr. November Pavlak’s cam- erred in endorse- we our and, paign manager, Aydt, James called Pavlak, IR, who is ment of Robert seek- characterizing the editorial as endorse- Kempe Rep. to unseat Arnold in 67A. ment, asked Mr. Pavlak whether it should report Kempe stated Pavlak’s research reprinted. Mr. referred Pavlak him years four times the 1977- voted handling prepa- Robert Larson who was the 78, not, reported, incorrectly 1967-68.” literature, pointing ration of out Kempe Mr. testified that he read the respect that there was an error evening in the Dis- November 6 editorial paper’s years reference to the 1967 and him to find and for patch, prompted 1968. He did not discuss the editorial’s the read the editorial in the No- first time opportu- votes out reference four p. Monday m. Dispatch. At 5:30 vember Aydt thereupon nities. Mr. called Mr. Lar- Carlin, publisher, Mr. Tom the he called editing, reprinting son and discussed the was a that the editorial advised Carlin They and distribution of the editorial. fraud, reporters knew it was agreed “Even marginal on the statement retrac- wrong demanded an immediate papers ‘typo’ message with the about Nitti, evening, same David Mr. tion. That opponent typographical our is clear!” The campaign manager, brought to Mr. Kempe’s Aydt mistake to which Mr. referred in that Mr. Pavlak’s Kempe’s package home a wrong year. conversation Mr. Lar- was copy of which included a campaign material son, hand, on the other testified that Mr. November 4 editorial. edited flagging mistake he was was the fact the best of his Kеmpe testified that Kempe with that the editorial credited Mr. time he had was the first recollection this thought four Mr. votes and Mr. Larson Kempe Although Mr. could seen it. particular actually Sumner meant original editorial on having recall read the times, out statement “No of more than rarely he and testified that November opportunities” because the whole thrust page, three of his cam- read the editorial stated, campaign, ulti- Mr. Larson they had called paign workers testified that mately boiled the 300 missed votes. down to short, the editorial on Kempe’s Mr. attention to there is no evidence that either the 5th. Pavlak, Sunday 4th and Aydt Saturday Mr. Mr. or Mr. Larson intend- 7, 1978, Tuesday, Mr. Pav- On Kempe that he met Mr. stated David Nitti Kempe votes, Saturday and Mr. margin on the street on of 321 lak was elected the endorse- expressed opinion had 4,133. damaging. Mr. ment of Mr. Pavlak group of Dis- On November paper mis- Kempe that Nitti told Mr. brought suit to vacate the trict 67A voters Kempe’s voting record. represented Mr. reprint grounds election on contestants, Scheibel, one of the James within the contained “false information” day spoken what he had to Mr. was not sure meaning 210A.04 of the Minneso- of section 4 editorial but Kempe about the November According to Minn.St. ta election law.1 it could have been on opinion was of the 209.02, pro- an election law any violation of Quinlan the 5th. Thomas talked to Sunday grounds such as 210A.04 is vision § 4th, Saturday morning the after Mr. “deliberate, election if it nullifying an seeing morning endorsement edi- serious, and material.” *4 Dispatch, tion of the and testified “We probably did discuss the error news- 7, through December From December record, paper concerning voting the too.” pursuant parties, acting the Minn.St. respondent of the It is the contention 4a,3 209.02, mutually accepta- chose a subd. knowledge of the November 4 edito- having judge by to hear the case strik- ble district day appeared, it it was Mr. rial on the judges available until one ing off names of mitigate damage by the Kempe’s duty to Breunig Judge of the remained. Robert immediately demanding a retraction. Not District was selected. First Judicial so, argued that Mr. having done is during the end of Decem- Trial was held regarded being editorial as nei- himself ber, 1978, judge the trial issued his and of ther a serious nor a material violation 2, January on 1979. dismissal of the contest the election law. 210A.04, 1, “Every supreme Upon provides: justice court. re- subd. chief ceipt of the 1. Minn.St. distributes, contest, writes, justice person prints, posts, who or the notice of the chief of written, printed, posted, shall, parties days, or or causes to be a within five submit to the distributed, except by broadcasting, any state, having circu- judges in list of all the district lar, poster, printed matter or other written or any judges involved in a trial with stricken containing respect information with to the false serving judge as in the election contest any personal candidate, political or character or acts of having the name would interfere and stricken elect, designed tends to which is or any judge precludes service as whose health injure any or defeat candidate for nomination parties judge shall in the election contest. office, public guilty of a or election to a shall be days receiving the list of within two after gross misdemeanor.” and, judges together in cases where meet alleged, by campaign practice alternat- unfair is 209.02, provides: “Any 2. vot- Minn.St. subd. judges until strikes remove the names of all er, candidate, including may the nom- contest proceed to hear but one remains who shall then any person ination or for whom he еlection provided in section the contest in the manner vote, right had the who is declared nominat- 209.10. cases where no unfair ed or to the elected senate or the house practice alleged, parties follow the shall state, States, representatives of the to a United procedure using only judges names of same county, legislative, municipal, or district judicial covering office, district or districts court or the declared result of a constitu- by judge question area served shall, the contested office. The tional amendment or other voted filed, days by proceeding provided has been within 15 after notice at an election chapter. as may brought appropriate place The contest be over an within the convene at an irregularity or, portions county, in the conduct of an election or if the district includes all or grounds county, county canvass of votes or on the ate, serious, of deliber- within the more than one of legislative pro- and material violations of the testimony of the district and hear visions of the Minnesota election law.” ordinary parties, evidence for under the rules of pro- does not civil actions. If the contestant 209.02, 4a, provides: legis- 3. Minn.St. subd. “In provided for herein his ceed within the time contests, be filed lative notice of contest shall judge shall and the action shall be dismissed provided and served except in subdivisions 2 to as copy for dismissal to transmit a of his order the clerk of district court representatives or house of chief clerk of the answer, notice, any, whom the if has been senate, secretary appropriate.” as each, shall, days receipt filed within three by copy submit certified mail one thereof appealed January provisiоn The contestants on contains a similar to Minnesota’s IV, provided 209.09.4 good Minn.St. Article 6.6 There are Section rea- According expedited this case the considera- sons for such widespread acceptance of the required 209.09, tion Minn.St. this court principle, often framed in terms of legisla- 5,1979. argument heard oral self-protection. March tive Judge Story’s com- argument primarily on the merits of ment is illustrative: case; parties argue did not brief nor obvious, power “It that a must be directly the propriety constitutional of this lodged judge somewhere to of the elec- However, acting court in this matter. re- tions, returns, qualifications of the * * search conducted the court in its subse- only possible members *. The quent consideration of the case revealed a question is, subject on such a as to the substantial issue of whether the court was body, in which power such a shall be free to any Accordingly, take action at all. other, lodged lodged. If than the the court April issued its order of itself, body its independence, * * * providing parties an opportunity to purity its destroyed * * present question. their views on the itself, *. body, No other but can hearing May was held on preserve have the same motives to attributes; perpetuate these no other with, begin I. To ques there is no body perpetually can be so watchful tion Legislature’s final authority in guard rights own privileges its from this matter. The constitutional directive is infringement, to purify and vindicate its explicit: *5 character, own preserve rights, and to the “Each judge house shall be the of the and sustain the free of its own choice eligibility election returns and of its own Accordingly, power constituents. has Constitution, members.” Minnesota Arti- always lodged been legislative IV, cle 6. Section body by practice England uniform privilege The legislature judge of a 7 and America.” eligibility of longstand- its own members is ing, dating back to when the House of very justification Since for this Commons attempt by resisted an legislative authority Crown is to resist encroach ment, have the Lord Chancellor determine a necessary implication a is that it is an qualifications.5 member’s legislative grant power absolute of constitutional prerogative universally adopted has been may in which delegated not be to or shared America, now every state constitution with the courts. So authorities univer- vacation; provides: may appeal 4.Minn.St. 209.09 “When be heard and determined supreme is taken to the summarily by appeal court from the determi- the court. The from a any nation of the district court in tuted under this insti- contest relating determination of an election contest chapter, party appealing representative the office of state senator or shall file in the district court a bond such precedence shall take over all other business on sum, $500, sureties, not less than and with such docket, supreme the posed court and shall be dis- approved by judge, as shall be conditioned copy dispatch. of with all convenient A payment for the of all costs incurred the ap- of the decision shall be forwarded to the chief respondent appellant in case fails on his representatives clerk of the house of secretary or the peal. appeal The notice of shall be served and senate, appropriate.” of the as days general filed no later than ten in case of a days election and no later than five in case of a Kindregan, Clayton 5. The Cases of Adam Pow- primary entry election after the of the determi- ell, Right Legisla- Jr. and Julien Bond: The nation of the district court the contest. The Members-Elects, tive Bodies to Exclude II Suf- appeal made, certified, return of such shall be University (1968). folk L.Rev. 63 supreme prac- and filed in the court as soon as any days ticable and in event within 15 after Legislature’s Judge 6. The Power to the Qualifi- appeal. appeal may service of notice of be Members, cations of Its 19 Vanderbilt L.Rev. brought hearing on for in the court at time (1966). 1410 session, upon when it is in such notice from party, may either as the court determine which Id., at 1412. may notice be served term time or in 848 judicial system.10 Since Annotation, organization of at collected
sally hold. Cases
jurisdictions have
then,
minority of
a small
A.L.R. 205.8
107
express
opinions by
advisory
provided
election contests
regulating
The statutes
cer
and there are
provision,
constitutional
princi-
on this
predicated
are
in Minnesota
has ad
Minnesota
tain other deviations.11
authority. Minn.St. 209.09
legislative
ple of
in a series of
majority
tradition
hered to
upon the render-
follow
specifies what shall
declining invitations from
consistently
cases
in a con-
decision
Supreme
Court
than ultimate
issue less
sources to
various
copy
“A
of the
legislative
election:
test of
In the
variety
of issues.
decisions
the chief
be forwarded to
decision shall
Senate, 10
Application of the
Matter of the
representatives or the
of the house of
clerk
Austin,
(1865);
19
(
of this earlier
Combs Groen
contest;
respect to the
he
cоnclusions with
er,
(1970).
256 Or.
vations complete with Kempe voted four times years dispute presented drawal from the to us 1977-78, not, incorrectly reported, 1967— does not option seem an available to us at 68.”) this time. We have heard the case and 6,000 copies paper D. Over spent great studying deal of time which appeared this editorial were sold to deliberating on becoming its merits before persons eligible who were to vote in the acutely aware of the institutional considera election district involved. tions counselling dismissal. In the mean 4-6, 1,800-1,900 E. copies On November time the challenged legislator has been of the November 4 editorial were distribut- voting, seated and colleagues and his ed in the election Mr. district Pavlak’s judges anticipate ultimate that some assist prospective workers to voters guidance ance and from us will be forth margin: with this notation in the “Even coming. unique necessities of the case papers ‘typo’ message with the about move us to offer what we are able in the opponent “typo” our is clear!” The word way analysis. do, of comment and This we figures referred to the “1967-68” used reserving until presents the situation next the editorial when “1977-78” was intended. itself a full decision on the propriety action in a case of this nature. re Our By distributing сopies F. of the No- necessarily marks will scope be of limited vember 4 published editorial Mr. Pavlak opinion and fall short of an validity on the concerning statement Mr.
of Mr. Pavlak’s election. We can advise on was false and material to the race for State *9 it, only offer limited District 67A to be decided ble. As to we the Representative in the 7th election. make with con- at observations we are able to fidence. received votes at
G. Mr. Pavlak
election;
Kempe
Mr.
re-
the November 7th
is a constitu
the standard
Whether
4,138.
of 161 voters were
ceived
If a net
analogized
tional
either
or
one
mandated
their votes from Mr.
caused to switch
v.
from the New York Times
Sullivan [376
because of the distri-
Kempe to Mr. Pavlak
254, 84
state of mind: did
Mr.
Legislature may
wish to consider.
remaining
dispositive
issue is not
may
Pavlak’s false statement
susceptible to scientific resolution and a
possi-
consensus of the court thereon is not
have influenced the election. We do not
case,
(1953).
McLaughlin
deprive
18. Schmitt v.
declined to
In
contestee be
an elected candidate of his office where he
lieved that his use of the initials ‘DFL’ on his
faith,
good
though
signs
acted
even
his violation of
lawn
and in his advertisements did not
“deliberate, serious,
from
election law was
violate section 210A.02.
It seems clear
material.” The
indi
court said:
the record that contestee intended
member of the
cate to the voters that he was a
“Violation of Minnesota election law does not
fact,
party.
response
DFL
In
to a letter from
necessarily mean that
the candidate elected
objecting
initials
contestant
to his use of the
deprived
must be
Minn.St.
office.
‘DFL’,
suggested
contestant
contestee
provides
210A.38
the act ‘com
that where
political party
his own
affili
could also indicate
plained of arose from accidental miscalculation
has indicated that he too
ation. Contestant
or from some other reasonable cause of like
the DFL
would have identified himself with
nature,
any
any
and in
arise from
case did not
circumstances,
party.
light
where it
of these
faith,
good
want of
under the circumstanc
appears that
conduct did not arise
contestee’s
unjust
it
es
seems to
court to be
that the
faith,
unjust
good
* *
from
would be
*
lack of
office,’
candidate shall forfeit his
penalty
require
him
his office.”
to forfeit
imposed.
of removal need not be
See
N.W.2d
Egan,
Bank v.
240 Minn.
60 N.W.2d
*10
tests,
consider
judge
selected the
who would
evidence for
know and have no basis
effect of the circula-
Honorable Robert
ascertaining the net
contest: The
the election
Mr. Pavlak or those
reprints by
tion of the
Judge of the
Judi-
Breunig,
J.
Chief
Second
assume,
can
him. We
who acted for
District,
jurist
experienced
an able
cial
that
course,
thought
that Mr. Pavlak
Judge Breunig
matters.
in election contest
help his
reprints
would
distribution of
fact,
up
summed
findings of
made several
in
Whether it did so
for election.
chances
First, that contes-
in two basic conclusions:
The voters
uncertain.
fact is nevertheless
deliberate, materi-
not committed a
tee had
exposed to the same
District 67A were
in
al,
Campaign
the Fair
or
violation of
serious
the circulation
by reason of
misinformation
and,
210A.04)
(Minn.St.
Practices Act
newspaper
November 4 issue of
second,
did not
that “The claimed offense
and the
appeared
first
in which the editorial
good faith and under
arise from want of
Dispatch
issue of the
November 6
circumstances,
unjust
it would be
that
correcting
charge while
repeated the basic
his office”
should forfeit
Robert Pavlak
Pavlak cannot be held
date. Mr.
the errant
210A.38).
(§
of false infor-
responsible for this diffusion
substituted its
majority
court’s
has
that some
fairly
It
be
assumed
mation.
can
relating
reprints
judge
who did
trial
prospective
findings
voters read
those of the
correc-
original
conclusions,
editorial or the
not read the
from which
to the first of these
im-
others were more
tion and that still
The second of these
respectfully dissent.
I
rep-
its
with the misinformation
pressed
faith,
conclusions,
good
of contestee’s
that
have been the
than would otherwise
etition
disturbed,
I concur
with which
has not been
these facts account for
case. But whether
accordingly make
which I will
and about
any votes—
net shift of 161 votes —or
only abbreviated comment.
Mr. Pavlak is some-
Kempe
from Mr.
know and cannot
thing that we do not
Supreme
limited role of
I. The
the record.
ascertain from
Court
the constitu
hope
V.
It
our
opinion,
major part
A
of this court’s
A.
Rep
House of
responsibilities
tional
argument,
is devot-
oral
following a second
expeditiously be
resentatives
can more
expression of our serious doubt
ed to an
we
light
carried out in
of the considerations
juris-
assume
we either have
should
opinion
We submit the
have enumerated.
constitutionally is a
to consider what
diction
understanding that
body
to that
with the
only
what can
legislative issue and to issue
hence
Supreme Court should
whether the
majority of
opinion. The
advisory
be an
elec
jurisdiction
forth decline
to do so
has decided
nevertheless
court
209.09
tion contests covered Minn.St.
findings
express some
case and to
in this
IV,
6 and Article
light of Article
Section
court.
It is
of the trial
contrary to those
III,
of the Minnesota Constitution
Section 1
I have undertaken
reason
for that
for future decision.
question
is a
reserved
record made in
study of the
independent
PETERSON,
(dissenting
part,
Justice
and,
seрarate opinion,
by this
the trial court
concurring
part).
evidence and
greater
submit in
detail
Judge Breunig’s find-
principles supporting
contestee, in accordance
Contestant1
ings of fact.
statutory system for election con-
with the
power”
is,
in the House of
simplicity,
67 balance of
opinion
“67 to
in this
1. “Contestant”
reflects,
Representatives
that it was
Kempe
there decided
alone.
It
a reference to Arnold
moreover,
Kempe as contest-
than
“better to have others
as set out
his real status
Kempe may
it
if
ant
it was.Mr.
contest was
[because]
record. Before this election
it,
taken,
grapes.”
people
sour
brought,
Kempe
as some
call
with the
Mr.
had discussions
feeling
general
be-
majority” (the representatives
“had a
of his
Mr.
himself
“House
things
per-
political
nature of
political party)
cause of the
assembled the individ-
and then
brought,
do
haps
others could
to be
on No-
if were
uals named as contestants in his office
18, 1978, together
Attor-
it.”
vember
with him and
They
ney
Alan W. Weinblatt.
discussed
candidates,
discussions
majority,
they
to the extent
cludes
struc-
B. The
of.
findings
government,
have
of fact for those
tures and forms of
the man-
substituted
*11
court,
departed
government
operated
ner in which
is
of the trial
has
from our
or
scope
appellate
operated,
of
review.
should be
and all such matters
usually limited
settled,
relating
political processes.
It is well
as stated in In re Estate
to
The Con-
Balafas,
94,
specifically
press,
293 Minn.
AII.
constitutional
706,
319,
(1933),
248 N.W.
709
that there is a
“necessity for
construction” because
strict
A
perspective
constitutional
is vital
Corrupt
“highly penal,
Practices Act is
consideration of all of the issues in this
imposing
penalties
of misde-
contest,
interpretation
election
for the
it,
upon
against
also in
meanor
offenses
but
application
210A.04, which this
§
candidates,
adding,
that of forfeiture of
based, inescapably implicates
contest is
nomination or office.” We еven more
expression
free
guarantees of
First
recently in Matter of
Contest
General
Amendment to the United States Constitu-
Meland],
Election
264 N.W.2d
1,
[Graves
provisions
tion as well as the like
of art.
401,
(Minn.1978), involving
present
403
2, of the Minnesota Constitution. The
§
statute, said:
United
Supreme
States
Court Mills v.
“ * * *
Alabama,
1434,
384 U.S.
86 S.Ct.
statutes,
These are criminal
(1966),
16 L.Ed.2d
488
a matter
gross
violations of which are
misdemean-
arising
Corrupt
under the Alabama
Prac-
Therefore,
ors.
the rule of strict con-
Act,
tices
made it clear:
penal
ap-
struction of
statutes must be
plied
“Whatever differences
exist about
notwithstanding the civil nature of
Amendment,
interpretations
proceeding
of the First
before us. Even in this
there
practically
agreement
universal
proceeding,
consequences
civil
major
that a
purpose of that Amendment
violation are severe since the decision of
protect
aside,
was to
gov-
judicially
the free discussion of
the voters is
set
and un-
opportunity
ernmental
in-
no
they
affairs. This of course
der the statute
have
issues,
on public
interest
in debate
in an
disqualified
for a
candidate
vote
second,
strong
interest
in debate about
vacancy.” (Italics sup-
to fill the
election
position
persons
signif-
those
who are in a
plied.)
icantly to influence the resolution of
has been
law of libel
The constitutional
government
those
issues. Criticism
Supreme
established
United States
very
constitutionally
at the
center of the
Sullivan,
Co. v.
Court in New York Times
protected
discussion.
area
free
Criti-
L.Ed.2d
U.S.
S.Ct.
government
responsible
cism of those
(1964),
progeny,
and its
A.L.R.2d
free,
operations must be
lest criticism of
concerning pub
*12
involving false statements
government
penalized.”
be
itself
is that
lic officials. The
rule
constitutional
Court,
Supreme
it
The United States
as
upon a
such
are actionаble
statements
Welch,
years
recalled 10
later in Gertz v.
malice,”
now
showing which is
“actual
supra,
that a ‘rule compelling
“concluded
“with
constitutionally
defined as made
guarantee
the critic of official conduct
that it
false or with reckless
knowledge
truth
assertions’ would
of all
factual
it was false or not.”
disregard
whether
334,
protected speech.” 418 U.S.
94
deter
726,
718,
280,
11
376
84
U.S.
S.Ct.
L.Ed.2d
“ * * *
3004,
The
2. The official sion; exercise, refuting self-govern- opportunities other is the essence of Harlan, Mr. Justice misstatements of fact. ment.” Publishing plurality opinion Curtis not limited The relevance of these cases is 1975, Butts, 87 S.Ct. Co. U.S. libel,3 for the rationale is to actions for 1094, (1967), noted 18 L.Ed.2d applicable and debate about to all discussion public have “sufficient access officials Supreme public affairs. United States counterargument to be able to the means of directly concerned with the sanc- Court was discussion the falsehood expose through ‘to might employed tions that for such defamatory statements. and fallacies’ of the speech. In New York Times the sanction California, Whitney v. U.S. judg- possibility money was the of ruinous (Brandeis, J., dis S.Ct. 71 L.Ed. which, against press they because ments senting).” similarly And this was ex press would intimidate the and stifle wide- concurring opinion of Mr. pressed in the affairs, open public would chill discussion recently, More Chief Justice Warren. sanction in this the First Amendment. The Welch, (418 supra Gertz v. U.S. S.Ct. statu- election case is no less serious. One *13 3009, 807), Mr. Justice 41 L.Ed.2d Powell “A candidate elected to tory sanction is that opinion: expressed plurality in his office, and whose election thereto has “ * * * * * * remedy any vic- The first not set aside been annulled and self-help using is tim of defamation not, during period — fixed law as shall opportunities to contradict available office, appointed or the term of said thereby the error and lie or correct any vacancy may fill which occur elected to impact reputa- minimize its adverse short, (§ 210A.39) a total in such office” —in public figures tion. Public officials and right the office or forfeiture of to hold enjoy significantly greater access usually be a candidate in a new election to fill to the effective communica- channel of vacancy statutory created. A second op- tion hence have a more realistic and for possibility prosecution is the sanction portunity to counteract false statements gross commission of a misdemeanor private normally enjoy.” than individuals (§ 210A.04). chilling The effect clearly Amendment no less than First imperatives 3. The constitutional New York Times and its feared in New York are not confined to actions Times progeny.
for are a on exec defamation and restraint judi utive or action as much as Two cases illustrate and election-related Supreme cial action. As the United States application instruct us in the these New re-emphasized Court in Garrison v. Louisi principles York Times’ to the instant case. ana, 74, 216, supra (379 85 13 U.S. S.Ct. Thompson, Amant v. 390 The first is St. 133): L.Ed.2d 727, 1323, 20 88 L.Ed.2d 262. St. U.S. S.Ct. “ * * * Amant, office, public made Truth not be the sub- a candidate ject ques- speech,4 of either criminal sanctions a televised in which he read civil or member, Albin, put tions to a union public where discussion of affairs is con- * * * charged concerning falsely Albin’s speech cerned. For answers are, course, sanctions, directly since the relevant the more remаrkable 3. These cases contestant, widely argument, used than at oral broadcast media is now more claim of major political campaigns. print reprint'upon which this action media in editorial statute, seriously defamatory. contends the Contestee in this case based was false exclusion, 1, 210A.04, a denial of that constitutes Minn.St. subd. as we held Graves because Meland, 401, 1978), equal guaranteed by (Minn. protection as U.S. N.W.2d 1, defamatory “clearly publications.” § Amend. XIV and art. relates to Const. Minn.Const. case has chosen not to ad- The court 210A.04, dress this issue. inexplicably 4. Minn.St. excludes prohibitions broadcast statements from its disregard reckless official, “By proper no test of with criminal public Thompson, a Supreme Court pub- The Louisiana a reckless conduct. was Amant’s broadcast St. judgment a trial court had affirmed public lication about a officer.” had libel, finding that Amant based on a St. second case is Monitor Patriot Co. v. The disregard of whether acted in reckless 621, Roy, 401 28 L.Ed.2d U.S. S.Ct. false, were true or since not those answers election, days (1971). Three before Thomp- knowledge of personal he had no primary Hampshire in the New Democratic activities, affi- solely relied on an son’s had election of candidates for United States without of Albin’s davit of Albin evidence Monitor, Senate, daily news- the Concord verify failed to the informa- veracity, had column, published Merry- “D. C. paper, facts, might tion with others who know the Go-Round,” by the North Ameri- syndicated mistakenly believed that he had no had (NANA), Alliance discuss- Newspaper because he can responsibility for the broadcast election, merely quoting forthcoming Albin.5 The United in which it reversed, Supreme stating, candidates, States Court Roy, one of the characterized part (390 20 L.Ed.2d U.S. 88 S.Ct. bootlegger.”6 a “former smаll-time 267): Supreme Court affirmed a Hampshire New “These fall short of considerations judgment against in libel both NANA and proving disregard reckless Amant’s St. Company. Patriot the Monitor .United about accuracy for the of his statements because the Supreme Court reversed States * * * are Thompson. cases [Our] jury issue had not been submitted clear that reckless conduct is not meas- sufficiently squared with with instructions reasonably prudent whether a ured standard, stating, the New York Times’ published, or would have man would have part (401 28 L.Ed.2d U.S. S.Ct. investigated publishing. before There 42): *14 (cid:127) permit must be sufficient evidence “The considerations that led us thus en- conclusion that the defendant in fact ‘official conduct’ rule of reformulate the tertained serious as to the truth of doubts of ‘anything York Times in terms New Publishing with publication. his such official’s fitness might touch on an disregard doubts shows reckless for truth special force to the apply for office’ with actual malice. falsity and demonstrates * * * “ * * * case the candidate. com- Neither lies nor false munications serve the ends of the First Amendment, desirability to insure the ascertainment and tion of the truth about essential that tect some erroneous as true ones. We adhere to this view and to the line which our cases have drawn between protected and those which are not. false or further and no one the First Amendment communications which are publications proliferation. public suggests affairs, publica- as well their pro- it is But jective gers political the essential function of cepts liability, press. the freedom of an individual to “The [******] for freedom of of tort application The reasonable-man standard and campaign socially acceptable limit on example, law to the conduct of is bound to raise dan- of the traditional speech served imposing and of admirably act with an ob- con- a system
relation to
But under our
others.
later,
case,
oppor-
5. We will
4
for the instant
be con-
contestant voted
tunities,
times out of 300
sidering
patently
reprehensible
contestee’s reliance on the editorial
than an
far less
reputable
Dispatch-
See, also,
statements of the
St. Paul
accusation of criminal conduct.
Gar-
Press,
reverification,
upon
Louisiana,
Pioneer
without
rison v.
379 U.S.
S.Ct.
apparent
responsibility
any
(1964),
Attorney
belief that the
in which District
L.Ed.2d
newspaper’s,
Garrison,
conference,
misstatement was
falsely charged
not his.
press
at a
hampering
judges
certain state court
with
case,
later,
6. We will
for the instant
be con-
efforts to enforce the state’s vice laws.
sidering
ment,
republished newspaper
a
misstate-
election,
days
within
that
before the
—this out of
government,
opportunities.”
we have chosen to afford
more than 300
‘opinions
protection
even to
that we The trial court found that the sentence was
fraught
loathe
believe
to be
ambiguous
that,
and in effect found
States,
v. United
death,’
Abrams
U.S.
event, it was neither deliberate nor material
630, 40 S.Ct.
tively
realistically by
judge,
the trial
they now must make a final decision of this
III. Contestant’s claim that contestee vi-
Campaign
election contеst.
olated the Fair
Practices
Act
note,
outset,
important
It is
at the
hinges upon
single
this election contest
a
contestant
contends
contestee
single
sentence
a
editorial —an isolated
solely
violated the election law
because he
incident —that should not be divorced from
reprint
a
distributed
of an editorial
the whole of that editorial and from the
Saturday,
morning
edi-
total
campaign.
context of the election
A
Dispatch-Pioneer
tion of the St. Paul
Press
editorial,
(Exhibit 1)
part of the
containing
single
consisting
substantial
challenged
middle,
nothing
opening,
sentence:
dispute
concluding
“We have seen
report
paragraphs,
representative
research
on
of the nature of
[Pavlak’s]
shows [Kempe]
whole,
voted four times in 1967-68
margin.8
is set
out
8. “In elections
7. Our own case of Rose v.
tremendous boost in the reaction to the Water-
gate
been the Minnesota
has been the result
ing
has deserved
cant
legislative endorsement, bi-partisan in selec-
libel verdict for
unbecoming
tal control and now an
tion,
for libel was initiated
subsequently,
in a
lished the
ta
Press have
Court cases
Patriot,
structions to the
interest,
carefully
New York Times constitutional
stated that Rose
campaign.
a member of the same
1. The and seriousness of Mendota the West Side/West reprint measured, first, Voice, the editorial County Paul St. and the Dakota disagree apparent experiencing. country 12. I with the view of the been was founded Our majority representa- that whether the false statement was on the idea of ‘no taxation without simply by Well, “serious” is Neighbor, problem to be determined wheth- tion.’ today! that’s still our 1,900 er a circulation of of the editorial reprints was a “trivial amount.” representative “We have ‘some-time’ who misses sessions and failed to record a vote at Neigh- 13. This is the text of contestee’s “Dear least 305 times 1977-78 Sessions alone. (Exhibit 6): quite easy bor” letter “It would be Journal, in House [Recorded 1977-78] *17 my eight years for me to rest on of solid accom- Together “You see the need. So do I. we plishment legislator. as a former state change. can make a It’s an idea whose time many neighbors “But ... so of our has come.” urged something have plorable that I do about the de- representation lack of this District has (Exhibit 7) paragraph this Tribune toward the end brochure stressed his laudable attendance record.15 This bro- Reprints of this advertisement campaign. throughout chure was distributed dis- by drop were distributed literature late in by drop by mailing trict both literаture part packet October as of several of registered each voter in the to district. campaign pieces.14 contestee’s had, addition, Contestant in his own “Dear Aydt, campaign James contestee’s mana- Neighbor” (Exhibit 21), widely letter dis- ger, conferred with Robert Larson on No- tributed obvious rebuttal of contestee’s reprinting copy vember 4 about a marked Neighbor” “Dear letter.16 morning’s Dispatch-Pioneer St. Paul Rounding campaign out the for both can- Press editorial. reluctantly Larson acceded story a in the didates was October 25 West wish, Aydt’s however, to significant for this Heights St. Paul-Mendota headlined Sun (credited by judge): reason the trial “To Kempe attendance-voting “Pavlak attacks my way thinking this editorial added (Exhibit 27), story record” and a in the * * * nothing to what we had stated. Voice, West Paul Side/West St. mailed or already pieces We had two of literature delivered to all residences and businesses in record; emphasized poor voting 6, containing District 67A on November anything more would be redundant.” front-page photograph of contestant and a np vigor- Contestant’s was less story “Irate headlined counters ads major ous. He had an attractive brochure of Bob Pavlak.” Inside West (Exhibit 22) similarly complete photo- Side/West St. Paul Voice was contestant’s information, graphs, biographical impres- Voters,” “Open Letter to in the same text endorsements, sive and a 23,17 statement of his as Exhibit a second advertisement legislative accomplishments goals. stressing past accomplishments One 1,900 except ing my during 14. All about 400 of the the record on attendance record reprints (Exhibit 1) My my editorial circulated the sessions. record for con- attendance is; packets. testee were two terms included in these One other item distributed at thе same time as Ex- - “1975 1976 Sessions 100% reprint hibit was Exhibit of an advertise- - “1977 1978 Sessions 96% published ment in the November 5 St. Paul 284, listing Pioneer Press SEIU Local con- “(1975-78 Journals)” House among legislators testant who had voted in a closed-to-public meeting permit legislators “Open is the full of contestant’s 17.This text years’ pension retire with a vested after 6 ser- (Exhibit 23): “My Republican Letter to Voters” vice. opponent’s ad that I missed sessions and votes deception is a on the voters. The fact is paragraph 15. This is the relevant of contest- my 100%, 1975-76 Sessions attendance was major (Exhibit 22): “Rep. ant’s brochure AR- my and in the 1977-78 Sessions attendance your KEMPE NOLD Legislature believes that vote in the was 96%. important. His attendance dur- my voting, Republican “On the matter of Legislative sessions is as follows: opponent knows that I served on House-Senate meetings Conference Committees were - “1975 1976 Sessions 100% my while the House was in session. On H.F. - “1977 1978 Sessions I-35E, removing 96% I the moratorium on in Conference Committee in both the 1977 “(1975-78 Journals)” House 1978 Sessions. my Sentencing Determinate “On under Neigh- 16. This is the text of contestant’s “Dear Bill, I was in Guidelines Meeting Conference Committee (Exhibit 21): “My again opponent bor” letter days during for five the 1978 Session. misrepresenting facts he did 1974 when H.F. 82 I was in On Conference Committee two he was voted out of office. In 1974 Pavlak days successfully stopped in 1978 and the Sen- mailed out a letter to renters with an enclosed attempt penalties ate to reduce on crimes of recently pieces legis- list of five then enacted my receiving property stolen and theft. For benefiting implied lation He renters. that he try my inability Republican opponent to to use supported legis- had and worked hard for that Meeting to vote Conference Committee against lation. inBut fact Pavlak had voted deception the voters. is a clеar fraud and legisla- the renter’s tax represent credit and most of the “To be selected the House again misrepresent- tion body working on his list. Now he is be- entire out the differences *18 that, ant whatever be contestee’s re- proposals and his for the legislative session session, reprint, contestee was sponsibility a third advertisement of en- for the next for the two Spanish, any way responsible and a fourth not dorsement written newspaper entire covering published back itself. advertisement editorials exclusively page containing much same materi- relates to the The measurement (Exhibit 22). voting In the al as his main brochure sentence about contestant’s isolated issue, published course, an adver- record, same contestee not measure the and does attacking contestant’s non- again origi- tisement else in the everything total effect of much the same text as voting record in including favorable en- nal editorial — 7,18 oppos- Exhibit a second advertisement dorsement of contestee. taxes, high ing government spending and Dispatch- of the Paul The circulation St. containing an and a third advertisement District 67A on November Pioneer Press in Spanish. endorsement written 4, according stipulated records of the note of this Judge Breunig specific took deliveries, 5,709 plus newspaper, was: home finding: evidence in this realistic of at 622 sales to nonsubscribers —a total 6,300 Aggregate circula- least individuals. light Kempe’s of Arnold “Considered Dispatch tion of the Paul on November (Exhib- St. campaign distribution of material 5,061. of the 6 was Circulation contestee 23) its addressed the Nos. reprint, editorial Exhibit on the other voting light record issue and in of the hand, 1,900 individu- of the editori- was limited to already wide dissemination Press-Dispatch, byal Paul Pioneer als. St.
contestee’s distributiоn of that editorial numbers, course, do not Circulation had no material effect on the outcome of readership. It necessarily reflect actual the election.” however, assumption, seems a reasonable voluntarily purchase a materiality 2. The and seriousness of that voters who measured, reading newspaper purpose it are reprint the editorial should be for second, original greater likely to read the in relation to the far reader- far more have and, involuntary than those who are the ship original editorial itself editorial addition, newspaper reprint included subsequent recipients “correction” edito- placed packet materials rial on November 6. The November 6 edi- in a at church or on the door- actually damaging torial was more than their automobiles an steps that of it made no mention of their homes. This is more than moreover, assumption, for it is demonstrat- opportunities” simply of “300 declared “Kempe times ed in fact two witnesses for contestant. voted four years Rodriguez, It contest- Frank one of the titular contest- 1977-78.” is conceded “Actually, missing legisla- Amie’s reason for all the tween the House and Senate versions of obligation. really high He missed tion is both an honor and a votes he did is immaterial! my your Representative Republican opponent For fails to to use this to them. When State proposed legislation your claim I vote on interests are didn’t vote when I could silenced, you attempt deception.” ignored, your at voice is are without You, representation. 67-A as a District voter slightly 18. This is the text con- abbreviated deserve better than this. (Exhibit 7): testee’s advertisement “Where was you legisla- “When return Bob Pavlak to vote Arnie when we needed him to on these you representation. again Dur- ture will have proposed 1977 & laws? missed 300 Repre- previous eight years as a State votes! sentative, perfect Pavlak had an almost attend- Attorney busy working “Was he too rarely missed a ance record and City take of Dis- of West St. Paul to care vote. trict 67-A’s STATE business? your representative “As PAVLAK PLEDGES busy working at his PRI- “Or was he too spend- diligently government work reduce practice VATE care of either law take ing significantly maintaining while needed ex- ” STATE or CITY business? * * * penditures “Or WHAT? *19 Quinlan ants, by was 5. Thomas called reprint] vember was testified: editorial “[The day read it.” at 9 a. m. same the my on car I did not contestant put Duehene, appeared “they for con- talked about Henry another witness editorial testant, reprint Nothing on more reac- testified that he saw the it.” than that. These evening supporters but contestant’s con- Monday by before the election tions active Aydt, of James contestee’s cam- pay “didn’t attention to it.” firm that manager, importance that the to con- paign The circulation editorial re- 3. of the simply was the fact that it was an testee prints at four churches in District 67A on by endorsement the ma- endorsement—an 5-6, warrants Saturday-Sunday, November jor daily newspaper tri-county metro- supplemental mention to the two brief in which locat- politan area District 67A is points just reprints made. The 550 to ed. on the placed windshields of automobiles parking church lot are included reaction of contestant himself on 1,900 reprints total of circulated. is even more demonstrative. that weekend editorial, Contestant, approximately It was these that aware of the ordered of being 3,500 “insti-prints” “Open were distributed without included of Letter to his packet containing voting the issue record several of contestee’s Voters” on of his 23) materials. campaign (Exhibit Whether all of these and made his own weekend uncertain, distribution, including at on the windshields is the same churches remained 1) testimony reprint (Exhibit of the had for there that numbers which the editorial reprints blowing Recognizing were at one about on least been distributed contestee. endorsement, parking similarly lots. a damaging of Contestant as the editorial con- campaign “Open circulated his own materials reverse side of the Letter” weekend, manner, reprint the same on this at item characteriz- same tained a news Representa- the same churches. as a ing contestant “Pro-Life perceiving tive.” Not then the now-chal- contemporaneous19 4. The reaction of anything of the as lenged sentence editorial publication contestant at the time of repetition contin- more than a of contestee’s original time editorial—and even at the nonvotes, upon his uing assault record of reprint distribution of the of editorial —is responded simply with a last- contestant the ultimate distribution confirmation that reprint repeating minute distribution reprint was not serious or material. regular his rebuttal. Nitti, mana- David contestant’s attempted obvi- ger, met contestant on at noon to evade the the street Contestant Saturday, contemporary and told con- from con- November ous inferences his Judge Breunig damag- by asserting testant that the was endorsement duct before until ing; apparent it was an after- that he had not seen the editorial thought “they up that he screwed November 6. testi- Monday, added Contestant’s Scheibel, a tit- the con- your voting mony patently impeached record.” James Scheibel, contestant, Nitti, testimony an similarly trary ular “took it as Quinlan additionally tes- thought Quinlan. еndorsement” and “the intent Thomas concerning he so with con- the whole editorial was that” —and tified conversation day 4: morning mentioned it to contestant on the of November either testant trial day, agreed or it “could have been” the next No- we had seen it.” The “We both course, representation Repre “Contemporaneous,” partisan refers to the in the House noncontempo- Independent-Republicans un weekend of November 4-6. The sentatives. successfully period period raneous from would include the undertook to break the meeting those similar belated in contest deadlock contest on dates election Otis, 18, previously grounds, O’Loughlin ants’ office on cussed, dis 276 N.W.2d 1979), (Minn. procedural when a contest which was decision was made to aborted light grounds. the election in 67 deadlock in be deprived elected must candidate have viewed with similar judge may well provides of his 210A.38 explanation he office. Minn.St. contestant’s incredulity ‘complained of arose page, that where the act read editorial regularly did not miscalculation or from sports pages. A from accidental preferring to read *20 nature, cause of like arises that contest- some other reasonable permissible inference from mitigate any to the not arise want delayed ant’s efforts case did resulting faith, from Novem- under the circumstances damage good the of claimed demanding unjust editorial, pub- from the the by ber it seems the court to be to office,’ 6 a lisher on November retraction that candidate his . . . late shall forfeit the published prior could not have been not be penalty imposed. the of removal need day, assuming even See, November 7 election Minn. Egan, Bank v. fully credited the uncorrobo- (1953).” (275 591.) the cоurt N.W.2d N.W.2d rated of his conversation with the account only is good faith not defense win publisher, may have been tactical: To but, the statutory introduc- as discussed polls on the basis of his full election at the opinion, tion of has a constitutional this whole the cam- opportunity spoken freedom of protecting dimension all paign any and misstatement to refute pub- and written words in the discussion of but, voting about if unsuccess- record — proved affairs, except only lic if it is with ful, opponent ultimately to defeat his such were convincing clarity that words contest. through an election knowledge of their falseness or in used true disregard of whether or false. reckless good faith
IV. Contestee’s
reprint
publication of
with-
Contestee’s
cautionary
comment in
complete
out more
good
statutory
defense of
faith is
margin
negligent,
been
well have
alone
of this election contest.
determinative
assumption
notwithstanding his stated
court,
applied
the defense in one
considerable inves-
newspaper,
with its
cases,
election
v.
our most recent
Schmitt
resources,
tigative
had discovered informa-
McLaughlin,
(Minn.1979),
and duties of legislature.
ment —the misgivings about
I also have some the trial court propriety of
constitutional conclusions
making findings of fact and court, it a one-man
law but because perhaps court intrusive. That
seems less no more than take
should have done
evidence, issues, summarize state testimony. de- majority opinion would to some court
gree of the trial modify the conclusion inappropriate think but I not opined that we I would do if I
is not what the ac- duty to review
had a constitutional court.
tion of that reasons, join I foregoing
For the *22 Justice
dissent of Mr. PETERSON. Defender, Jones, and Ka- Paul Public
C. Defender, Minneapo- thy King, Asst. Public lis, appellant. Gen., Thomas Spannaus, Atty. L.
Warren Gen., Daniels, Fabel, Atty. John H. Deputy Paul, Gen., Jr., Atty. Robert Sp. Asst. St. Preston, Benson, respon- County Atty., Ray HOLSCHER, petitioner, Glen dent. Appellant, Minnesota, Respondent. STATE
No. 49160. KELLY, Justice. Petitioner, charged originally who was Supreme Court Minnesota. assault, Minn.St. 609.- aggravated May (assault dangerous with a subd. with a child weapon), and liberties indecent 609.296; 16, Minn.St.1974, subd. 2 § under plea to guilty (since repealed), entered to a charge and sentenced maxi- latter years Two prison years. mum term 7of relief sought postconviction petitioner later concedes that notes legislative candidates dis- dorsements delivered to the editor warranted that Ramsey-Dakota-Washington tricts within statement. There was no mention of “four Counties, strongest circu- newspaper’s notes; votes” in those the votes were a area, Indepen- generally lation favorable to compilation of contestant’s nonvotes. If (IR) (contestee Republican dent candidates sentence, whole, say as a is read to them) among and unfavorable to Democrat- only contestant voted four times in the en- (DFL) (contest- ic-Farmer-Labor candidates session, apparent tire would be among them). The issue in those more ant any intelligent palpably reader unbe- contexts, then, is complete whether iso- Larson, preposterous. lievable and Robert editorial, republished lated sentence in that prepared regular campaign who contestee’s contestee, and, so, was “false” if whether reprint materials and who did not think the it was “serious” and “material.”9 anything would add beneficial the cam- paign, prose characterized the editor’s is- Any A. consideration of the factual talking these words: “We are about a man challenged sue of whether the sentence of syntax is unbe- who writes tortuous the editorial was “false” should start with lievable.” Whatever the fault of the edito- word, meaning for it has the writer, rial no one even intimates that he various and distinctive nuances ascribed to publish intended to an untruth.10 it in Webster’s Third New International court, majority of this unlike the Dictionary (1966)p. primary 819. Its mean- totally judge, trial reads the sentence as corresponding is: “Not to truth reali- false, truth in it: ignoring one unassailable (the ty; synonyms not true” of which are opportuni- had “more than 300 Contestant “erroneous, incorrect”). secondary, pejo- A times, ties” to vote—and voted no not even meaning “intentionally rative untrue” although stating majority, four times. The (the synonym “lying”). of which is “voting is the point at a later essence sentence, false, if considered representative’s position” point at this meaning only primary “false” “only” 329 states that contestant missed word. It is false when it attributes to votes,11 presumably a charitable adverb report contestee’s research the statement shared those of contestant’s constituents opponent. that incumbent voted 4 times out of who voted for his Sumner, hardworking type ken this: “William editor ‘show me’ of indi- confirms Press, nothing dispute Dispatch vidual. We have seen of the St. Paul and Pioneer report given research on that shows the in- misreading him material admitted to cumbent voted four times in out Monday, 1967-68—this published T Pavlak. He played a correction opportunities. of more than 300 rookie,’ complete T Sumner said. ” is, indeed, Kempe, “This unusual. like Pav- misinterpreted it.’ lak, indexing, if is for tax but one wonders he would be around to vote for it. he failed to vote 11. Contestant concedes that rebellion, is a rather modest list for a “There 329 roll-call votes in the session. 1977-1978 but it is the best we could muster. We do