Statute Under Fire: Why Both Prosecutors and Defense Attorneys Are Challenging Minnesota's Election Law
By: JOHN W. LUNDQUIST & DULCE J. FOSTER
July 2004
2004 is shaping up to be a contentious election year, and it is all but inevitable that our mailboxes soon will overflow with flyers touting and vilifying the candidates. Such advertisements are regulated by the Fair Campaign Practices Act—a Minnesota law that makes it a crime to distribute false campaign materials knowingly or with reckless disregard as to whether the materials are false.
This law promotes the interest we all share in receiving truthful information before we go to the polling place. Nevertheless, parts of the statute have come under intense scrutiny and criticism by prosecutors and defense attorneys alike. Opponents take issue with a strict provision requiring prosecutors to investigate all complaints of violations—and to prosecute all cases in which there is probable cause that a violation occurred—under penalty of criminal conviction and removal from office.
This mandatory prosecution provision appears designed to prevent prosecutors’ own political views from interfering with their obligation to enforce the law. Criticism of the provision has increased, however, as complaints alleging minor or unsubstantiated violations of the statute have proliferated. Often these complaints are initiated by political opponents of the accused. Many believe that vindictive politicians are using the statute as a weapon to generate bad publicity against their opponents, and forcing prosecutors to stand in the crossfire. There were a number of convictions under the statute following the last election cycle.
The mandatory prosecution requirement for violators of the Fair Campaign Practices Act is unique in Minnesota law and has few, if any, counterparts in other states. Prosecutors ordinarily have the discretion to decide which cases they will prosecute and which they will decline to pursue. This discretion permits them to take into consideration the strength of the evidence, likelihood of success at trial, community interest in prosecution, limited resources available for prosecution, and other factors. The Minnesota Supreme Court has recognized that prosecutorial discretion is a power that, under the separation of powers clause of the Minnesota Constitution, rests exclusively in the Executive Branch of government. Neither the legislature nor the courts may exercise it or take it away.
We recently represented a state legislator who had been indicted for violating this statute. At our urging, a District Court Judge in Washington County applied the separation of powers clause to the Fair Campaign Practices Act. In an unusually scholarly opinion, the Court concluded that the mandatory prosecution requirement violates the Minnesota Constitution, and dismissed the indictments against our client and her campaign manager. This decision underscores the problems with the statute, but it is not necessarily binding on courts in other jurisdictions. So, prosecutors may remain under the threat of criminal penalties and forfeiture of office if they do not prosecute every alleged violation of the statute.
The Minnesota County Attorneys Association has proposed legislation that would substantially revise the Fair Campaign Practices Act. Instead of requiring prosecution, the proposed legislation would transfer primary responsibility for handling complaints to an administrative board, which would have the authority to dismiss them, levy fines, or—in the most serious cases—refer complaints for criminal prosecution. The legislature wisely enacted this bill last month, effective July 1, 2004.
The White Collar Group at Fredrikson & Byron has represented numerous candidates and elected officials who have faced Fair Campaign Practices investigations and charges. Feel free to contact the authors for more information.