11/8/2022 3:41 PM

STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS

_____________________________________________________________________________

Troy Kenneth Scheffler, OAH Docket No.: 71-0325-38723

Complainant,

vs.
Respondent’s Arguments
Rosemary Franzen,

Respondent.
_____________________________________________________________________________

INTRODUCTION

Respondent Rosemary Franzen submits the following written arguments in response to

the Notice of and Order for Panel Assignment and Scheduling Order dated November 1, 2022.

The material facts in this case are not in dispute. The Respondent is an incumbent

candidate for Crow Wing County Commissioner’s Office for District 4. During the Respondent’s

campaign, the Respondent distributed door hangers that contained a disclaimer that stated the

hangers were “Prepared and Paid for by Volunteers for Franzen.”

Likewise, the Respondent disbursed $1,065.97 on August 26, 2022, to pay for the door

hangers. Respondent reported this disbursement in the Respondent’s campaign finance report

which was filed on October 3, 2022.

For the reasons stated herein, the Respondent substantially complied with Minn. Stat. §

211B.04. Alternatively, Respondent’s campaign materials did not deceive voters and thus a fine

is not appropriate in this circumstance. Moreover, Respondent’s reported the contribution and

distribution shortly after the required time.

 PREPONDERANCE OF THE EVIDENCE STANDARD

The standard of proof of a “violation of chapter 211A or 211B is preponderance of the

evidence.” Minn. Stat. § 211B.32 subd. 4. “The preponderance of the evidence standard requires

that to establish a fact, it must be more probable that the fact exists than that the contrary exists.” See

In re Revocation of Family Care Lic. of M. Born, OAH 10-1800-3310 at 11 (citing City of Lake Elmo

v. Metropolitan Council, 685 N.W.2d 1 (Minn. 2004)). The Complainant carries the burden to

establish a case, and the Respondent has no obligation to disprove the case. See In re Quantification

of Environ. Costs, OAH 6-2500-8632-2 at 9.

ARGUMENT

I. The Respondent has substantially complied with the disclaimer requirement.

The Respondent’s door hanger substantially complied with Minn. Stat. § 211B.04 because

the door hanger stated who paid for the materials. Minn. Stat. § 211B.04 states that “[a] person

who participates in the preparation or dissemination of campaign material...” must “use a

disclaimer” that “substantially” complies with Minnesota Statute. Minn. Stat. § 211B.04 subd.

1(b) states that a disclaimer should state “Prepared and paid for by the ….... committee, …....

(address)….”

In Gadsden v. Kiffmeyer, this Office found that a document disseminated on behalf of

Representative Kiffmeyer was campaign material and substantially complied with the disclaimer

requirement despite lacking a specific statement indicating who “prepared and paid” for the

material. Gadsden v. Kiffmeyer, OAH 3-0320-21609. The document was produced in a tabloid

formation with four pages of text and was designed to resemble a newspaper. It contained

articles promoting Representative Kiffmeyer’s legislative work and numerous photographs of

Representative Kiffmeyer. At the top of the document, above the fold, was “A letter from

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Representative Kiffmeyer.” Across the bottom of the front page was a graphic in large font size

advising reads to “Connect with Your Neighbor Representative Kiffmeyer at

www.kiffmeyer.org.” Based on the totality of this document, the panel of Administrative Law

Judges in that case concluded that the document substantially complied with the disclaimer

requirements. The panel found that the only conclusion a reader could reasonably draw was that

Representative Kiffmeyer, or her campaign committee, disseminated the material.

For the purposes of this case, the Respondent concedes that the door hanger is campaign

material as defined in Minn. State. 211B.02 § subd. 2. However, the Respondent’s campaign

material substantially complies with the disclaimer requirement. The door hanger states who paid

for the material and has the Respondent’s name in large font. Similar to Kiffmeyer, the door

hangers also contain a picture of the Respondent and the Respondent’s spouse. Under these

circumstances, a reader could reasonably infer that the Respondent disseminated the material.

The fact that the address is not on the material does not bar a finding of substantial

compliance. The address requirement helps inform the reader regarding who paid for the

material. Crow Wing County is a small county, and the candidates are known within the

community. Further, the candidate is an incumbent. The average reader would know who the

candidate is and how to find the candidate. This is no different than Kiffmeyer, where a

reasonable reader could figure out who paid for the material and how to contact them from

looking at the material. The reader in the present case can discern who paid for the material and

how to find the person that created and disseminated it. Since the creator of the material is

identified, and the location of the creator is easily ascertainable, the material substantially

complies with the disclaimer requirement.

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 a. The Respondent’s campaign materials did not deceive voters and any
shortcoming of the disclaimer was isolated and inadvertent.

Even though disclaimer did not contain an address, the material did not deceive voters

and the Respondent’s omission was inadvertent and isolated. The Penalty Matrix followed by

judges of this Court permits that a panel can decline to issue a fine if the alleged violation has

minimal or no impact on voters and if the alleged violation was “inadvertent” or “isolated.”

As stated herein, this election is in a small county where people can readily identify the

candidates. The fact that the material stated who paid for it and contained the Respondent’s name

and a photograph of Respondent illustrates that there was either minimal or no impact on voters

because a voter would not be deceived by the material. This campaign material is not attempting

to conceal any vital information. It is forthcoming about who paid for the material. Likewise, the

candidate has held this position for over sixteen years. In that time, the candidate has complied

with legal and ethical requirements. Any omission of this information was inadvertent and

resulted from the Respondent using material that the Respondent thought complied with legal

requirements. Since the alleged violation was an isolated, inadvertent, and unimpactful, this

Court can and should not issue a fine.

II. The Respondent reported the distribution shortly after the distribution was
made.

Minnesota Statute requires that “a candidate who receives contributions or makes

disbursements of more than $750 in a calendar year shall submit an initial report to the filing

officer within 14 days after the candidate or committee receives or makes disbursements of more

than $750….” Minn. Stat. § 211A.02. This campaign reporting requirement “exist[s] to promote

transparency in the financing of political campaigns” and to provide “information on a

candidate’s funding sources helps voters make informed choices.” Nick Voltzke v. Chad Walsh

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and Chad Walsh for Sheriff, OAH 5-0325-38184. Likewise, under the Penalty Matrix, this Court

can decline to issue a fine.

The candidate filed a financial report on October 3, 2022, that disclosed the door hanger

disbursement. Although the report was filed after the 14-day window, the report was filed less

than a month late. Since the report disclosed the disbursement and was made shortly after the

window for disclosure, a fine is not necessary in this circumstance because the overall purpose of

campaign financial laws was still served. The Respondent was transparent about the expenditure.

Likewise, the report was made over a month before the election. Voters had ample time to look

over the expenditure and make an informed decision.

Conclusion

Based on the foregoing, Respondent respectfully requests that this Office find that the

campaign material substantially complied with Minnesota law. Moreover, the Respondent

requests that this Office does not impose a fine because any alleged violations were unimpactful

and unintentional.

Respectfully Submitted,

Date: November 8, 2022

R. Reid LeBeau II (MN #347504)
JACOBSON, MAGNUSON, ANDERSON
& HALLORAN P.C.
The Jacobson Law Group
180 East Fifth Street
Suite 940
Saint Paul, MN 55101
T: (651) 644-4710
F: (651) 644-5904
rlebeau@thejacobsonlawgroup.com

Attorney for Respondent