Today in completely bogus camfi complaints
Last Call: In a telephone call with the 211B administrator late yesterday afternoon (Monday, November 4th), she confirmed that Mr. Webster had withdrawn his complaint. He writes that he called the Andrew campaign and asked them to provide more detail on the “ADT” entries, and they said “sure,” so he withdrew his complaint. He could have made that same phone call or sent a letter last week (demand letters are made all the time in a variety of legal contexts) but he chose to file the admitted jurisdictionless complaint instead. This simply reinforces my point that the whole exercise was done by a Hodges supporter to affect the election. I won’t speculate whether he would have withdrawn the complaint in a single working day if I had not written this.
On Friday, November 1st, a person, not a lawyer, filed a pro se complaint in the Office of Administrative Hearings. It was made against Mark Andrew and the Mark Andrew Campaign, alleging deficiencies in the pre-general campaign finance report recently filed with Hennepin County. The person who filed it — although the copy on Scribd bears no filing information — Tony Webster, is not a lawyer, but except for the bogus allegations it makes, it might have been made by a lawyer, one familiar with the system. It probably was prepared by a lawyer who didn’t want to put his or her name on it. I asked Mr. Webster who prepared it for him, but he declined to tell me.
The reason this is interesting, and more than a little suspicious, of course, is that Tuesday, November 5th is election day when voters will cast their multiple choice ballots for mayor in Minneapolis. Mr. Webster is apparently a web-savvy guy, and he made the announcement of his complaint on Twitter:
— Tony Webster (@webster) November 1, 2013
The tweet has been retweeted and favorited several times.
Well, you say, it’s just elbows and knees under the campaign basket!
The funny thing is, though, the OAH has no jurisdiction over camfi reports for local races in Hennepin County, a fact that the Webster admits:
Not simply a “gap,” Mr. Webster. The Grand Legal Canyon. It is such a Grand Legal Canyon that one has to doubt the good faith of the filer, or the preparer, of the complaint, especially given the timing. The complaint will be summarily dismissed, but not before the election.
Where do you go to find pre-primary and pre-general campaign finance reports in mayoral races? Hennepin County. Where do you go when you have a campaign finance report or practices complaint in a mayoral race? The county attorney.
If wishes were horses, Mr. Webster, smear artists would ride.
Perhaps ten years or so ago, the Legislature carved out campaign practices complaints in state races, took them out of the hands, at least initially, of county attorneys to decide whether to prosecute, and vested the OAH with limited civil jurisdiction over them, but not in the case of Hennepin County or the City of Minneapolis.
It has been a tale of woe ever since. The Webster’s complaint is Exhibit A in why. Anybody with $50 to spare — or get from a campaign somewhere — can file a complaint in the OAH, and then use it to smear a candidate. Because clearly, that is what the Webster is doing here.
If this was a state office case, the Webster would make his complaint with the Campaign Finance and Public Disclosure Board, because it is a campaign finance report issue, not the OAH, and the CFB would investigate and make findings. Until it did, the matter would not be public record.
The complaint here is full of words of supposition; it is a $50 piece of innuendo.
I have my suspicions where this comes from, but unlike the Webster, I’m not going to engage in supposition and innuendo.
Update: The Webster now even admits that the OAH is entirely without jurisdiction. I expect he will face an application for attorney’s fees by the Andrew campaign.
@LeftMN Curious why you characterize it as a “smear.” Setting jurisdiction aside, the substantive argument seems to have merit.
— Amy Bergquist (@alb68) November 3, 2013
Hardly curious. The first thing I heard in civil procedure — well after, “Awwwright, I’m Jack Cound and this is first year civil procedure” — was that a court’s (or administrative agency’s, although we learned that later) first question is always: do we have jurisdiction (authority) to hear this case? You usually have to set out the facts that demonstrate jurisdiction at the very beginning of your complaint. (You cannot set jurisdiction “aside.”)
In his complaint, Webster does exactly the opposite; he sets out facts as to why the OAH doesn’t have jurisdiction. But he thinks it is such a good idea that an exception should be made in his case. Good luck with that. See you legislator, Tony.
Lawyers have a special word for cases like this: frivolous. Judges take frivolous very seriously. But it is more than mere frivolity here. It is the misuse of legal process for a political end.
And it is not as though he has no remedy; he could bring the matter before the county attorney, although he wouldn’t have gotten any splash — are you seeing the pattern here?
And the hip Mr. Webster has a blog, right? He could have written a post and got the word out there. Why, he did, referring, of course, to the frivolous complaint he filed, because it wouldn’t have much frisson if he didn’t.
Even further update, the further-est so far:
— Amy Bergquist (@alb68) November 3, 2013
Tony Petrangelo is an innocent bystander in this, by the way.
Franz Kafka, a nation turns its lonely eyes to you.
There is a remedy, as I explained above: the county attorney takes action if s/he believes warranted. You may not like it, Amy, but there it is. As I suggested to the Webster, contact your legislators.
Perhaps Amy is suggesting that the OAH render an advisory opinion that the Legislature ought to get its act together. I’ll bet that would work really well. Not to mention that the OAH has no — and here’s that icky word again — jurisdiction to issue advisory opinions.
Maybe Amy thinks that the OAH should just bootstrap itself into jurisdiction. You know what we’d call that? Judicial (well, quasi-judicial here) lawlessness.
What if somebody presented Articles of Impeachment against Mark Ritchie to the OAH? Clearly no jurisdiction there either, but the judges think, “Hmmm. You know, that Ritchie guy is a troublemaker; the Republicans are bringing cases against him all the time. They haven’t laid a glove on him, really, but it would save us a lot of work if he was gone.”
You might say, “Well, that’s a silly example.” But it differs in degree, but not essential kind, to the thing that Amy is suggesting.
Or what if the OAH started hearing First Amendment cases involving campaign communications on a summary basis without affording the parties any opportunity to do discovery? Oh, sorry, it already does that.
One of the reasons that I am exercised about this is because campaign practice violations do not belong in the OAH; they should be brought in the Campaign Finance and Public Disclosure Board, along with the reporting complaints that the CFB already fields. That’s tangential here, however, the idea that somebody can pony up a small fee, file a complaint, and intimate that somebody is a criminal is, well, criminal.
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