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Administrative law judge tosses complaint against developer Minn over anonymous campaign mailing

Steve Minn
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Steven Minn

An administrative law judge has dismissed a campaign disclosure complaint [PDF] against Minneapolis developer Steve Minn for an anonymous mailing targeting a City Council candidate.

The reason? The person who filed the complaint didn’t provide evidence that Minn had spent more than $750 on the piece, the threshold for being covered by disclosure laws. However, the complainant, Paul Birnberg of Minneapolis, did establish that Minn rented the Post Office box used as the return address for the attack on Ward 9 council candidate Gary Schiff.

The state law governing the disclosure of sponsors of campaign material requires that anyone bringing a complaint has to provide enough facts to allow a judge to find a “prima facie” case that a violation occurred. That is, the facts on their face are enough to show that a violation occurred.

But in this case, Jessica Palmer-Denig, an administrative law judge for the state Office of Administrative Hearings, wrote: “Minn was legally entitled to circulate campaign material anonymously, provided he acted alone and did not make more than $750 in disbursements to disseminate these items. Complainant speculates that dissemination of the campaign material must have cost more than $750 and must have required more than one individual to stuff the envelopes for mailing. Complainant doesn’t offer any facts in support of these allegations.”

Minn said Wednesday that he had knowledge of the disclosure law and made sure he acted in a way that would not trigger a statement on the mailing identifying the sponsor. “I never was in doubt that I was complying with the law when I did this,” Minn said.

The mailing went out just before Election Day in Ward 9, where incumbent Alondra Cano was being challenged by former Council Member Gary Schiff and Mohamed Farah. Cano finished first on election night, with Schiff second and Farah third. When Farah’s second-choice ballots were counted, Cano was pushed over 50 percent and was re-elected.

“I am a concerned citizen and neighbor,” read the mailing. “I prefer to remain anonymous, but I won’t be making an attack on any candidate so my name should not matter.” It went on to say that “as a public service” the person responsible for the mailing had copied Schiff’s campaign finance reports and discovered that “most (85%) of the $70,545 in contributions itemized on Gary’s report comes from real estate, business interests, architects and contractors who will appear before Zoning and Planning in the future. Gary chaired Zoning and Planning for 12 years and wants to return to that post.”

Birnberg said he was curious about the source of the mailing and unhappy that it was anonymous. He filed a request with the Postal Service for the renter of the post office box and found that it was registered to Minn at his Edina home.

“A person living (at that address) is not my neighbor,” Birnberg wrote in the complaint. “Indeed he not only does not live in my neighborhood, he does not live in my ward or even in my city.”

Birnberg notes that state campaign finance laws require that campaign material contain the name and address of the people or groups responsible for preparing and disseminating it. The irony is that the line of attack against Schiff — that he was taking too much money from developers — came from a developer.

Gary Schiff
Gary Schiff

Birnberg called the ruling “unfortunate.”

“I don't have the resources to fight this, but the ruling does seem unfair,” he said via email. “Without discovery, making my case is rendered virtually impossible. If I had a contested hearing or the ability to do discovery, I could ask Minn under oath who he worked with and how many pieces were sent out. Short of having an informant within Minn's group or within the mailing service he used, I don't know how I could determine how many pieces of this item were sent out.”

Minn gave a $600 contribution to Farah, which was the only contribution to the candidate identified as being from the development community, according to an analysis by MSPVotes. That same analysis shows that Schiff received most of the developer money in the race: $9,150.

Minn co-owns Lupe Development and was a leader of an independent expenditure campaign Minneapolis Works!, which supported a batch of incumbents, some challengers, and one candidate in an open seat. Among the challengers that Minneapolis Works! supported was Farah.

Mail sponsored by Minneapolis Works! was both promotional for Farah and critical of both Cano and Schiff. One pictured both candidates along with a headline that starts on the front and finishes on the back and reads: “While politicians Gary Schiff and Alondra Cano only look out for themselves … No one is looking out for Ward 9."

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Comments (6)

What a joke!

MPLS at its finest

Hello, Legislature?

The judge appears to have found a sound legal reason for dismissing this case. That's a shame, and a clear sign that the current law is insufficient to protect voters from this type of shenanigans.

A healthy, functioning Legislature, operating in the best interests of its constituents rather than the political parties, could probably fix this pretty easily. Will ours?

Sound

I read the order and am familiar with the case cited, one of which I have cited many times myself. This is a gross misapplication of the law and an incompetent and/or dishonest judge. $750 is a small amount, and the fact a ward-wide mailing was sent is a prima facie case IMO. The standard the judge is asking for is impossible to meet without discovery.

Anonymous Political Speech is Protected by the First Amendment

Please spare the faux outrage and do a little research. Anonymous political speech is older than the Republic, and protected by the constitution. John Jay, James Monroe and Alexander Hamilton published under "Publius." as an example. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) is the most recent Supreme Court case striking down a state law requiring self-funded political speech to be identified. MS 211B.04(e) is specifically in state statutes to comply with McIntyre. You folks don't have to like it, but this is an american tradition older than our constitution. So... publishing Gary's campaign contributors from a public record is somehow "shenanigans?" Really?

Totally and completely wrong

There is a difference between anonymous political speech - which McIntyre addressed - and regulation of anonymous political spending, which courts have repeatedly found to be constitutional. The decision in your case did not involve the First Amendment. The judge simply (and erroneously) dismissed the case for lack of evidence.

If you spent more than $750 on those mailings, you broke the (very constitutional) law.

Constitutional debate misses the point

Well my attorney... three other attorneys whom we consulted... and the Judge disagree with your learned assessment.

What I find hilarious is the angst and outrage over a factually correct distribution of a public record that corrected the false impression Mr. Schiff had been giving voters. Mr. Schiff claimed to be above reproach -
disdaining interference from big business and downtown interests. He made libelous remarks about me and other developers... yet he took over 85% of his funds from just those "special interests" he intended to regulate.

Mr. Gallagher erred in his story by only according Mr. Schiff the "developer" contributions accounted for on some local website claiming to be tracking political contributions. That site is rife with gross errors. The number Gallagher quoted was less than $10,000 for Schiff. The actual public report I provided showed Schiff taking over $65,000 from these business interests. Now THAT was newsworthy and clearly the voting public responded by not returning Schiff to office.