Appeals court sends dispute back for administrative hearing

The Minnesota Court of Appeals affirmed in part and reversed in part an administrative law judge’s ruling in the Minnesota Voters Alliance case against Anoka-Hennepin District 11 Dec. 23.

The Minnesota Voters Alliance, with Donald Huizenga, a parent in the district, filed a complaint Nov. 2, 2012, alleging that the school district violated fair campaign practices and campaign financial reporting statutes when it circulated brochures before a 2011 levy referendum.

In April, an administrative law judge dismissed the matter, ruling that the Minnesota Voters Alliance had failed to file in time, within one year of the distribution of the brochures. The brochures were mailed out and posted on the district’s website in late October 2011.

The court of appeals upheld the administrative law judge’s dismissal of the fair campaign practices portion of the lawsuit, which alleged the school district intentionally provided inaccurate information in the brochures.

However, the court reversed the financial reporting claims as they were timely; Anoka-Hennepin has not filed campaign finance reports to date, so the clock on the one-year statute of limitations has not yet begun to tick.

So, the case will be sent back to the administrative law judge to consider whether the brochure was promotional, as the voters alliance claims, or informational, as the school district maintains.

“This is a big win for us,” said Andy Cilek, executive director of the Minnesota Voters Alliance in a press release. “Now, the [Office of Administrative Hearings and administrative law judge] will have a second opportunity to actually deal with the merits of this important and far reaching case.”

The Minnesota Voters Alliance’s ultimate goal is to determine whether school districts have the authority to promote ballot initiatives. With that, “they’re going to have to draw lines between what’s promotional and what’s informational,” Cilek said in an interview.

For Cilek, the brochure falls firmly in the promotional category.

The Anoka-Hennepin brochure detailed the three levy questions on the November 2011 ballot: Question 1: Renewal of the 2007 levy; Question 2: Authorization of the capital project levy for technology; Question 3: Authorization of an additional levy to support educational programs. It listed the consequences of a “yes” vote and a “no” vote.

A disclaimer on the district’s brochure – “This brochure is not circulated on behalf of any candidate or ballot question.” – did not satisfy Cilek.

“It doesn’t have to have the magic words ‘vote yes’ to be expressed advocacy,” Cilek said. “Every single word in the ‘vote yes’ part of [the brochure] is positive, and every single word in the ‘vote no’ is negative. That is expressed advocacy. There’s no other way to slice it.”

The school district disagrees.

After a levy referendum in 2001, the district held community meetings and received feedback from 3,500 voters. Many said that they did not know what they were voting on; there wasn’t enough information for them to make a decision and budget cuts were the result, according to Jeanette Bazis, a partner at Greene Espel and outside counsel for the district.

The district is “very mindful” of the public’s desire for information and “was careful to not cross the line into promotion,” Bazis said. The district maintains this position going forward, she said.

The administrative law judge could rely on the previously filed summary judgment papers to make a ruling or call for an evidentiary hearing to hear from witnesses.

Bazis estimates that everyone will know what direction, procedurally, the judge is leaning later this month.

Olivia Koester is at olivia.koester@ecm-inc.com

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