State of Minnesota, Appellant, vs. Thaddeus Victor Jude, Respondent.
Annotate this Case
State of Minnesota
in Court of Appeals
C5-96-509
State of Minnesota,
Appellant,
vs.
Thaddeus Victor Jude,
Respondent.
Filed October 15, 1996
Affirmed
Schumacher, Judge
Hennepin County District Court
File No. 95104313
Hubert H. Humphrey III, Attorney General, Lee E. Sheehy, Chief Deputy
Attorney General, Peter M. Ackerberg, Robert A. Stanich, Assistant
Attorneys General, 102 State Capitol, St. Paul, MN 55155 (for Appellant)
Charles R. Shreffler, Jack E. Pierce, Shreffler Law Firm, P.A., 100 South
Fifth Street, Suite 2250, Minneapolis, MN 55402-1221 (for Respondent)
Roger J. Magnuson, Dorsey & Whitney L.L.P., 2200 Pillsbury Tower South, 220
South Sixth Street, Minneapolis, MN 55402-1498 (for Respondent)
Harlan M. Goulett, 33 South Sixth Street, Suite 3540, Minneapolis, MN 55402
(for Respondent)
Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue
South, Minneapolis, MN 55408 (for Amicus Curiae Minnesota Civil Liberties
Union)
Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and
Foley, Judge.(*)
[Footnote] (*)Retired judge of the Minnesota Court
of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.
Syllabus
1. The Minnesota Fair Campaign Practices Act's prohibition of false
campaign advertising is a permissible state regulation of campaign fraud
that is not preempted by the Federal Election Campaign Act, which regulates
federal campaign contributions and expenditures.
2. The prohibition in Minn. Stat. § 211B.06 (1994) of false campaign
statements made with ``reason to believe'' they are false is
unconstitutionally overbroad because it extends to statements protected by
the N.Y. Times ``actual malice'' standard.
3. The trial court did not clearly err in dismissing the indictment for
false campaign advertising based on the record showing the grand jury may
have applied an unconstitutionally overbroad standard.
Opinion
SCHUMACHER, Judge (Hon. Robert H. Lynn, District Court Trial Judge)
This appeal is from a pretrial order dismissing an indictment charging
respondent Thaddeus Victor Jude with the gross misdemeanor offense of
disseminating false political campaign material in violation of Minn. Stat.
§ 211B.06 (1994). We affirm.
Facts
Jude ran for the Sixth District Congressional seat in 1994 against William
Luther. After the Jude campaign had issued several attacks on Luther's
record on crime while he was a state senator, the campaign broadcast a TV
ad on the last weekend of the campaign in which it accused Luther, while in
the Minnesota Senate, of blocking a Jude-sponsored bill that, Jude claimed,
would have prevented a December 1990 crime spree by a convicted sex offender,
Daniel Patten.
The TV ad stated as follows:
In 1990, a Minnesota woman and her two daughters
were abducted and repeatedly raped over a two-day
ordeal. Despite two prior convictions, the
perpetrator, Daniel Patten, was out of prison on a
weekend furlough. Patten may never have been
released and this crime never committed had
legislation authored by Tad Jude been enacted. But
Jude's bill was stopped by Bill Luther and his
liberal friends in the Minnesota Senate. Bill
Luther's willingness to set violent criminals free
is putting every woman in Minnesota in danger.
Sending him to Congress would be a crime.
(Emphasis added.)
Jude had introduced a bill in the 1987 legislative session that would have
delayed certain violent offenders' eligibility for supervised release. It
would have become effective August 1, 1987, and applied to offenses
committed on or after that date.
Patten had been sentenced in 1983 to a 95-month prison term for criminal
sexual conduct. After a revocation of supervised release, he was only two
weeks short of the expiration of his sentence in December 1990 when he
committed the crimes referred to in the ad while released on a weekend
furlough.
The state presented to the grand jury charges of dissemination of false
campaign material against Jude and against his campaign manager, Steven
Knuth. The grand jury heard testimony about the history of Jude's bill in
the 1987 legislative session. Jude testified, conceding that his bill would
not have applied to Patten's case. He testified, however, that he had been
assured by Knuth that the bill would have applied to Patten. Jude testified
that he was under the impression that Patten had been convicted of another
offense in 1988, and therefore would have been covered by the bill.
The grand jury returned an indictment charging Jude with dissemination of
false campaign material. See Minn. Stat. § 211B.06, subd. 1.
Jude moved to dismiss the indictment, however, and the trial court granted
the motion, concluding that the statute was unconstitutionally overbroad
and was preempted by federal law. The state filed this appeal.
ISSUES
1. Is the Minnesota Fair Campaign Practices Act preempted by federal law?
2. Is Minn. Stat. § 211B.06, subd. 1 unconstitutionally overbroad?
3. Did the trial court clearly err in dismissing the grand jury indictment?
Analysis
1. Federal Preemption
The trial court concluded that the Minnesota Fair Campaign Practices
Act, Minn. Stat. §§ 211B.01-.21 (1994), under which Jude was
charged, is preempted by the Federal Election Campaign Act (FECA), and
regulates federal elections in violation of the Elections Clause, and the
Supremacy Clause. U.S. Const. art. I, § 4, cl. 1, art. VI, cl. 2.
FECA regulates campaign contributions to candidates for federal office and
expenditures made by those candidates. See 2 U.S.C. §§ 431-
455 (1994). The Act provides:
The provisions of this Act, and of rules prescribed
under this Act, supersede and preempt any provision
of State law with respect to election to Federal
office.
2 U.S.C. § 453 (1994).
There is a strong presumption against preemption. Weber v. Heaney,
995 F.2d 872, 875 (8th Cir. 1993). The explicit preemption in FECA has been
narrowly construed in determining what area of state law has been
preempted. Id.; See alsoReeder v. Kansas City Bd. of Police
Comm'rs, 733 F.2d 543, 545 (8th Cir. 1984) (FECA preemption statute is
not so clear as to preclude consideration of legislative history as to
scope of preemption).
The statute under which Jude was charged does not regulate the expenditures
of, or campaign contributions to, candidates for federal office, or any
other office. See Minn. Stat. § 211B.06. It merely prohibits
certain nonfinancial campaign practices by all candidates in Minnesota,
specifically the use of false campaign materials or advertising. A separate
provision in the Fair Campaign Practices Act does prohibit corporate
political contributions. Minn. Stat. § 211B.15. But most of this
state's campaign financing provisions are found in chapter 211A.
The United States Supreme Court has recognized the state interest in
establishing
a substantial regulation of elections if they are to
be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic
processes.
Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974).
FECA provides only a very limited regulatory scheme for federal elections.
As the Eighth Circuit indicated in Weber, the FECA preemption
provision should not be read so broadly as to preempt state laws in areas
such as false registration or voting fraud. 995 F.2d at 876; See also
Friends of Phil Gramm v. Americans for Phil Gramm, 587 F. Supp. 769,
776 (E.D. Va. 1984) (Congress in enacting FECA did not intend to prevent
states from regulating fraud in political advertising).
Jude argues that the regulation of false campaign advertising does not
relate to the ``time, place and manner'' of a federal election, as
permitted by the Elections Clause, and is therefore an unconstitutional
assertion of state power, in violation of the Supremacy Clause. See
U.S. Const. art. I, § 4, cl. 1 (states shall prescribe ``Times,
Places and Manner'' of holding congressional elections). We disagree. The
United States Supreme Court has recently indicated its approval of state
laws that regulate election procedures without imposing substantive
qualifications on candidates for federal office. U.S. Term Limits, Inc.
v. Thornton, 115 S. Ct. 1842, 1869-70 (1995). A state may adopt,
consistent with the Elections Clause, ``'generally applicable and
evenhanded restrictions that protect the integrity and reliability of the
electoral process itself.''' Id. at 1870 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 n.9, 103 S. Ct. 1564, 1570 n.9 (1983) ).
Minn. Stat. 𨴫B.06 is generally applicable to all candidates for
election in Minnesota. It prohibits false campaign advertisements, and
other false statements in the course of a campaign, and is, therefore,
directly related to the fairness and honesty of the electoral process. The
statute is not an unconstitutional state regulation of a federal election.
2. Overbreadth
A statute is unconstitutionally overbroad if it extends to
constitutionally-protected speech and other expressive conduct, and if the
overbreadth is both real and substantial. New York v. Ferber, 458 U.S. 747, 770, 102 S. Ct. 3348, 3361-62 (1982). The statute will be
invalidated if by its terms it leaves no room for a narrowing construction.
Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575,
107 S. Ct. 2568, 2572 (1987). Whenever possible, however, this court should
narrowly construe a statute to save it from constitutional challenge. In
re Welfare of R.A.V., 464 N.W.2d 507, 509 (Minn. 1991), rev'd on
other grounds, 505 U.S. 377, 112 S. Ct. 2538 (1992).
Minn. Stat. 𨴫B.06, subd. 1 makes it a crime to
intentionally participate[] in the preparation,
dissemination, or broadcast of paid political
advertising or campaign material with respect to the
personal or political character or acts of a
candidate, whether or not defamatory, * * * that the
person knows or has reason to believe is
false and that is designed or tends to elect,
injure, or defeat a candidate * * * *.
(Emphasis added.) The trial court concluded that the extension of criminal
liability to those who have only a ``reason to believe'' the campaign
material is false makes the statute unconstitutionally overbroad. We agree.
A statement made concerning a public official is not defamatory, unless it
is made with
``actual malice'' - that is, with knowledge that it
was false or with reckless disregard of whether it
was false or not.
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710,
726 (1964). A criminal sanction may not be imposed for political speech
that does not meet the N.Y. Times ``actual malice'' standard.
Garrison v. Louisiana, 379 U.S. 64, 76-78, 85 S. Ct. 209, 216-17
(1964). The state, however, argues that any overbreadth created by the
``reason to believe'' language is not real and substantial.
Jude argues that the ``reason to believe'' language in section 211B.06
creates an ordinary negligence standard. But our supreme court has
construed ``reason to believe'' as used in the mandatory child abuse
reporting law, to require a gross negligence standard. State v. Grover,
437 N.W.2d 60, 63 (Minn. 1989). Thus, Minn. Stat. § 211B.06 would
be interpreted, even in the absence of constitutional challenge, as
requiring gross negligence. Even gross negligence, however, is defined
objectively, as a gross deviation from the standard of ordinary care, while
``reckless disregard'' involves a subjective element of actual conscious
disregard of the risk created by the conduct. See State v. Frost,
342 N.W.2d 317, 319-20 (Minn. 1983). This difference is ``real and
substantial'' when the challenged statute regulates ``core political
speech'' as does Minn. Stat. § 211B.06. See McIntyre v. Ohio
Elections Comm'n, 115 S. Ct. 1511, 1519 (1995) (law burdening ``core
political speech'' must be examined with exacting scrutiny).
The state argues that the ``reason to believe'' language in section 211B.06
should be narrowly construed, to avoid a finding of unconstitutionality, as
covering only statements made with ``reckless disregard'' of their truth or
falsity, as required by N.Y. Times. The N.Y. Times ``actual
malice'' standard is plainly the pattern to which the statute must be
trimmed. Moreover, Jude does not show that Minn. Stat. § 211B.06 is so
sweeping that it cannot effectively be narrowed by limiting the phrase
``reason to believe'' to situations in which there is a reckless disregard
of the truth or falsity of the statement. But, because of the way in which
the offense was presented to the grand jury, it is not possible to apply a
narrowing construction in this case.
3. Dismissal of Indictment
Jude argues that this court cannot employ a saving construction of
Minn. Stat. § 211B.06 because the grand jury itself was given the
unconstitutionally overbroad ``reason to believe'' language. The trial
court concluded that the grand jury had been improperly instructed, and
that this error could not be said to be harmless. We agree, and find that
the trial court's conclusion is not clearly erroneous. See generally
State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977) (state in pretrial
appeal must show clearly and inequivocally that trial court erred).
The prosecutor deleted the ``reason to believe'' language in instructing
the grand jury on the elements of the offense, apparently trying to narrow
the statute's overbreadth. But the prosecutor displayed by overhead
projector the full statute, including the ``reason to believe'' language,
both before and after the evidence was presented. Moreover, the forms for
the overhead projection of the statute were left in the room where the
grand jury deliberated. Thus in this case, although there was some attempt
to do so, no clear limiting construction was provided to the grand jury.
Cf. State v. Hipp, 298 Minn. 81, 90-91, 213 N.W.2d 610, 616-17
(1973) (affirming unlawful assembly convictions where trial court applied
limiting construction in instructing jury).
The supreme court has reversed a disorderly conduct conviction that it
determined could not stand under a saving construction the court adopted to
save the statute from an overbreadth challenge. In re Welfare of
S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978). The court noted that the
Constitution required ``fighting words'' before a person could be convicted
for mere speech and reversed because the state had failed to prove that the
words uttered were ``fighting words.'' Id. at 420.
We do not hold that a properly-instructed grand jury could not find
probable cause to believe that Jude's conduct met the N.Y. Times
``actual malice'' standard. We cannot find on this record, however,
that the grand jury applied the constitutionally-required ``actual malice''
standard, or some narrower construction of Minn. Stat. § 211B.06, subd.
1. Accordingly, the trial court did not clearly err in dismissing the
indictment.
Decision
Minn. Stat. § 211B.06 is not preempted by federal law. The statute,
however, is unconstitutionally overbroad. The trial court did not clearly
err in dismissing the indictment because the record fails to show that the
grand jury applied a constitutionally permissible standard.
Affirmed.
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