The disclaimer statute is unconstitutional, per Talley v California, 1960, and McIntyre v Ohio, 1995. Although the complaint has now been withdrawn, the filing of it was a civil rights violation, illegal under federal law. The reporting statute, on the other hand, is probably constitutional, per Buckley v Valeo. It is also unconstitutional, under the First Amendment, to tell a newspaper what they can charge for ads. Ellig's action in this matter were unethical, and he should report himself to the attorney disciplinary committee
Wednesday, January 28, 2015
http://www.fergusfallsjournal.com/2015/01/election-violations-complaint-dismissed/#disqus_thread
Fergus Falls is in Minnesota.
NOTE: See Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006) for decision on the constitutionality of Minnesota Statutes 2004, section 211B.04. See also Laws 2010, chapter 397, section 15, amending Minnesota Statutes 2008, section 211B.04. See Minnesota Citizens Concerned for Life, Inc. v. Kelley, 219 F.Supp.2d 1052 (D.Minn. 2003) for decision on the constitutionality of Minnesota Statutes 2000, section 211B.04. See Also Laws 2004, chapter 293, article 3, section 2, amending Minnesota Statutes 2002, section 211B.04.
http://mn.gov/lawlib/archive/ctappub/0605/opa051125-0426.htm
riley v. jankowski 713 N.W.2d 379 (Minn. Ct. App. 2006) is a new one for me. it found the disclaimer statute unconstitutional. apparently the statute has been re-enacted.
http://www.sos.state.mn.us/index.aspx?page=1569
The statute has been amended after Riley v Jankowski, as shown by the above link. The only change was to change $500 to $2000, an irrelevant change.
In the comments to the article I wrote,
Lawyers Professional Responsibility Board
Office of Lawyers Professional Responsibility
1500 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102-1218
[5] A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A
lawyer should use the law’s procedures only for legitimate purposes and not to harass
or intimidate others. A lawyer should demonstrate respect for the legal system and for
those who serve it, including judges, other lawyers, and public officials. While it is a
lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a
lawyer’s duty to uphold legal process.
The city of Fergus Falls requested Monday morning that the election law violations complaint lodged against Friends for a Progressive Fergus Falls and This Week’s Shopping News be dismissed after both parties provided evidence that they had been following the Minnesota election laws in question.
Assistant City Attorney Joe Ellig wrote — in an email explaining the situation to the City Council — that after discussions with City Attorney Rolf Nycklemoe, election official Lynne Olson and City Administrator Mark Sievert they decided to withdraw the complaint.
Fergus Falls is in Minnesota.
211B.04 CAMPAIGN LITERATURE MUST INCLUDE DISCLAIMER.
(a) A person who participates in the preparation or dissemination of campaign material other than as provided in section 211B.05, subdivision 1, that does not prominently include the name and address of the person or committee causing the material to be prepared or disseminated in a disclaimer substantially in the form provided in paragraph (b) or (c) is guilty of a misdemeanor.
(b) Except in cases covered by paragraph (c), the required form of disclaimer is: "Prepared and paid for by the .......... committee, .........(address)" for material prepared and paid for by a principal campaign committee, or "Prepared and paid for by the .......... committee, .........(address), in support of .........(insert name of candidate or ballot question)" for material prepared and paid for by a person or committee other than a principal campaign committee.
(c) In the case of broadcast media, the required form of disclaimer is: "Paid for by the ............ committee."
(d) Campaign material that is not circulated on behalf of a particular candidate or ballot question must also include in the disclaimer either that it is "in opposition to.....(insert name of candidate or ballot question.....)"; or that "this publication is not circulated on behalf of any candidate or ballot question."
(e) This section does not apply to objects stating only the candidate's name and the office sought, fund-raising tickets, or personal letters that are clearly being sent by the candidate.
(f) This section does not apply to an individual or association who acts independently of any candidate, candidate's committee, political committee, or political fund and spends only from the individual's or association's own resources a sum that is less than $2,000 in the aggregate to produce or distribute campaign material that is distributed at least seven days before the election to which the campaign material relates.
NOTE: See Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006) for decision on the constitutionality of Minnesota Statutes 2004, section 211B.04. See also Laws 2010, chapter 397, section 15, amending Minnesota Statutes 2008, section 211B.04. See Minnesota Citizens Concerned for Life, Inc. v. Kelley, 219 F.Supp.2d 1052 (D.Minn. 2003) for decision on the constitutionality of Minnesota Statutes 2000, section 211B.04. See Also Laws 2004, chapter 293, article 3, section 2, amending Minnesota Statutes 2002, section 211B.04.
riley v. jankowski 713 N.W.2d 379 (Minn. Ct. App. 2006) is a new one for me. it found the disclaimer statute unconstitutional. apparently the statute has been re-enacted.
http://www.sos.state.mn.us/index.aspx?page=1569
The statute has been amended after Riley v Jankowski, as shown by the above link. The only change was to change $500 to $2000, an irrelevant change.
In the comments to the article I wrote,
Lawyers Professional Responsibility Board
Office of Lawyers Professional Responsibility
1500 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102-1218
[5] A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A
lawyer should use the law’s procedures only for legitimate purposes and not to harass
or intimidate others. A lawyer should demonstrate respect for the legal system and for
those who serve it, including judges, other lawyers, and public officials. While it is a
lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a
lawyer’s duty to uphold legal process.
The city attorney's conduct here was illegal, violating the First Amendment and the federal civil rights statutes which protect it.
He used the unconstitutional and void statute to harass and intimidate the defendant.
This showed disrespect for the two court decisions, one state, one federal, which have found the statute unconstitutional. A reasonably diligent city attorney would check the case law before attempting to enforce a statute, particularly when as here is it obviously unconstitutional, in that it attempts to censor core political speech.
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