City of Grant, by and through its City Clerk, Kim Points, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1070

City of Grant, by and through its
City Clerk, Kim Points,
Respondent,

vs.

John D. Smith,
Relator.

Filed March 13, 2017
Affirmed
Johnson, Judge

Office of Administrative Hearings
File No. OAH 8-0325-33077

Amanda E. Prutzman, Eckberg Lammers, P.C., Stillwater, Minnesota (for respondent)

Richard D. Donohoo, Maplewood, Minnesota; and

Theresa R. Paulson, St. Paul, Minnesota (for relator)

Considered and decided by Tracy M. Smith, Presiding Judge; Johnson, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The City of Grant held a special election in which residents voted on a proposed
city charter. Before the election, a group of residents distributed campaign literature
supporting the proposed charter. The literature bore the city’s logo and other design
2
features that appear in city documents and on the city’s website. The city cl erk filed a
complaint alleging a violation of the Fair Campaign Practices Act on the ground that the
group’s campaign literature falsely implied that the city was endorsing the proposed
charter. After an evidentiary hearing, a panel of three administrative law judges found a
violation of the act and imposed a $250 penalty on John D. Smith, a member of the pro -
charter group who was found to have taken certain actions that caused the campaign
literature to be sent to city residents . Smith and his wife challenge the hearing panel’s
decision on multiple grounds. We affirm.
FACTS
The City of Grant is a statutory city of approximately 4,000 residents in Washington
County. It was a farming community in prior decades but has become increasingly
residential. In its printed materials and on its website, the city often uses a logo, which
consists of a depiction of a log cabin in front of two pine trees, the years in which the city
was organized and incorporated, and the slogan, “A Home in the Country.” When the city
uses the logo on its newsletter, it superimposes the words “Grant News” over the log cabin.
In October 2015, the city held a special election on two questions. In the first ballot
question, residents were asked whether the city should establish a home-rule charter.1 In

1A home-rule charter outlines a “scheme of municipal government” for a specific
municipality. See Minn. Stat. § 410.07 (2016). A home-rule charter recognizes that a city
has “unique powers over local matters.” Gadey v. City of Minneapolis , 517 N.W.2d 344,
348 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994). “[I]n all matters pertaining
to municipal government the provision of the home rule charter overrides general laws with
respect to the same subject. So long as the municipal legislat ion involves matters of
municipal concern and the state has not expressly or impliedly restricted the municipality’s
3
the second ballot question, residents were asked whether to discharge the city’s charter
commission.2 The city itself did not take a position on either ballot question.
Groups of city residents organized on both sides of the ballot questions and took
various actions to promote their respective points of view. A group called the Rally for the
Charter Committee (RFTCC) supported the proposed charter. John D. Smith (hereinafter
“Smith”) was the treasurer of the group. He filed a campaign finance report on behalf of
the group, and he listed his home address as the mailing address for the group. He attended
approximately two-thirds of the group’s meetings. His wife, Karen Y. Smith, did not attend
any RFTCC meetings and was not actively involved in the campaign.
Before the election, RFTCC distributed campaign literature, including a one-page
flyer and a tri-fold brochure. Both the flyer and the brochure urged residents to vote in the
affirmative on the first question and in the negative on the second question. At the top of
the flyer is the city logo. Near the logo are the words “City of Grant Minnesota” in a
distinctive typeface that is very similar to the typeface the city uses for the same words in
its printed materials and on its website. At the bottom of the flyer is the phrase, “Prepared
and paid for [by] Rally for [the] Charter Committee,” with a mailing address that is the
Smiths’ home address.

power over these matters, the municipality may enact local legislation that is inconsistent
with state law.” Id. (quotation and citation omitted).
2A charter commission is made up of between seven and fifteen qualified voters of
the city and is tasked with framing a city charter. Minn. Stat. §§ 410.05, subd. 1, 410.06
(2016). A charter commission may be discharged if a majority of voters vote to discharge
the commission. Minn. Stat. § 410.05, subd. 5.
4
The tri -fold brochure is printed on both sides and folded in thirds such that it
contains six panels. When folded, o ne of the external panel s includes a space for the
mailing address of the recipient and , in the space for a return address, the city logo with
the words “Grant News” superimposed over the log cabin. Next to the logo are the words,
“Reminder! City of Grant Special Election,” and information about the date and hours of
the special election and the place where the recipient could vote. The other external panel
depicts a sample ballot, with votes superimposed in favor of the first question and against
the second question. Inside the brochure, two panels contain text explaining the issues and
urging voters to approve the charter. O ne panel contains four photographs with the city
logo in the middle. A nd one panel lists city residents who support the proposed charter,
including “John & Karen Smith .” At the bottom of the brochure is the phrase, “This
message prepared and paid for by Rally for the Charter Committee,” with a mailing address
that is the Smiths’ home address.
Residents received the flyer in September 2015. The brochure was sent by mail in
October 2015. Thereafter some recipients expressed concern that the literature implied
that the city was endorsing the proposed charter. One married couple residing in the city
sent an e-mail message to the city clerk, Kim Points, stating:
We found the attached notice on our mailbox this morning and
are outraged that the Rally for Charter Committee is using the
official City of Grant letterhead for the purpose of advancing
their cause. We are hopeful that action will be taken by the
City immediately to stop this unethical (and likely unlawful)
election activity.

5
One city council member received the brochure, noticed the city logo, and contacted Points
to ask whether the city had authorized the brochure. Points also received other questions
and complaints about the mailings. In response to the complaints, Points placed a
disclaimer on the city’s website to clarify that the city did not have an official position on
either ballot question. The city attorney sent a cease -and-desist letter to the Smiths,
demanding that they stop using the city logo in RFTCC mailings.
On election day, the first question failed, and the second question passed. In other
words, voters rejected the proposed charter and dissolved the charter commission.
In November 2015, a complaint was filed with the Office of Administrative
Hearings (OAH), alleging that John Smith and Karen Smith made false claim s of
endorsement, in violation of the Fair Campaign Practices Act. See Minn. Stat. § 211B.02
(2016). The complainant was identified as “City of Grant by City Administrator / Clerk,
Kim Points through City Attorney Nicholas J. Vivian.” The complaint was signed by
Vivian.
A panel of three administrative law judges (ALJs) conducted an evidentiary hearing
in May 201 6. The city called five witnesses: Points, Smith, a city council member, and
two city residents. Points testified that , as city clerk, she administers c ity elections,
maintains the city’s records, assembles the city’s newsletter, and posts information on the
city’s website. Points testified that the logo on RFTCC’s literature is the city’s logo and
that the words “City of Grant Minnesota” on the literature are in the same typeface in which
the same words are shown on the city’s website. The city introduced exhibits that visually
illustrated Points’s testimony. The city council member and the two residents testified that
6
they received RFTCC ’s literature and became concerned that some residents would be
misled into believing that the city had sent the literature and was endorsing the charter .
The city council member testified that she believed that the brochure implied that the city
supported RFTCC’s position. One of the residents testified that she had gone door to door
to advise residents that the literature was not sent by the city.
Smith testified that he arranged for the printing and the mailing of the brochure but
did not prepare the flyer or arrange for it to be printed. He testified that the city logo on
one panel of the brochure was provide d by the printer and that he decided to not change
the brochure to omit the logo. He testified that the “Grant News” logo in the return-address
field of the brochure was simply “an attention-getter” and that he chose it instead of the
log cabin logo because of the word “news.” But he testified that the logo “wasn’t intended
as any attempt to indicat e this was coming from the City.” He testified further that he
hand-delivered some literature, possibly including the flyer, to newspaper receptacles of
city residents.
After the city rested its case, Karen Smith moved for dismissal of the complaint with
respect to her , and the hearing panel granted her motion. She then requested
reimbursement of her costs. The hearing panel denied that request on the ground that the
brochure stated that Karen Smith supported RFTCC and that RFTCC “was apparently . . .
headquartered at ” her home, which allowed “an inference that she was involved in the
development of the literature that bore her address.”
In June 2016, the hearing panel issued its findings of fact, conclusions of law, and
order. The hearing panel concluded that Smith knowingly used the city ’s “logos and
7
symbols” in a way that “falsely implied that the City of Grant endorsed approval of Ballot
Question 1 and opposed approval of Ballot Question 2 .” The hearing panel imposed on
Smith a civil penalty of $250. Smith moved for reconsideration, but the hearing panel
denied t he motion on the ground that there is no authorization in the Fair Campaign
Practices Act for a post-hearing motion for reconsideration. Both John Smith and Karen
Smith appeal by way of a writ of certiorari.
D E C I S I O N
The statute on which this matter is based provides as follows:
A per son or candidate may not knowingly make,
directly or indirectly, a false claim stating or implying that a
candidate or ballot question has the support or endorsement of
a major political party or party unit or of an organization. A
person or candidate may not state in written campaign material
that the candidate or ballot question has the support or
endorsement of an individual without first getting written
permission from the individual to do so.

Minn. Stat. § 211B.02 (2016). A person who wishes to seek a remedy for a violation of
section 211B.02 may file a complaint with OAH. Minn. Stat. §§ 211B.31, .32, subds. 2, 3
(2016). A panel of three ALJs must conduct an evidentiary hearing within no more than
90 days and must issue a decision within no more th an 14 days. Minn. Stat. § 211B.35,
subds. 1, 3 (2016).
“A party aggrieved by a final decision” on a fair -campaign-practice complaint “is
entitled to judicial review of the decision as provided in sections 14.63 to 14.69.” Minn.
Stat. § 211B.36, subd. 5 (2016). This court may reverse or modify an administrative
decision only if it (a) violates constitutional provisions; (b) exceed s the authority of the
8
agency; (c) was made using unlawful procedure; (d) was affected by an error of law; (e) is
unsupported by substantial evidence; or (f) is arbitrary or capricious. Minn. Stat. § 14.69
(2016). “A presumption of correctness attaches to an agency decision, and deference is
shown to an agency’s conclusions in the area of its expertise.” In re 2005 Adj ustment of
Charges, 768 N.W.2d 112, 119 (Minn. 2009). “An agency’s conclusions are not arbitrary
and capricious if a rational connection between the facts found and the choice made is
articulated.” Fine v. Bernstein, 726 N.W.2d 137, 142 (Minn. App. 2007) , review denied
(Minn. Apr. 17, 2007).
I. Standing
Smith first argues that Points did not have standing to file a complaint under the Fair
Campaign Practices Act.
The issue of standing typically arises in a civil action that is commenced in district
court. In such a case, the plaintiff must have “a sufficient stake in a justiciable controversy
to seek relief from a court .” Enright v. Lehmann , 735 N.W.2d 326, 329 (Minn. 2007).
Standing may be acquired in either of two ways: “either the plaintiff has suffered some
‘injury-in-fact’ or the plaintiff is the beneficiary of some legislative enactment granting
standing.” State by Humphrey v. Philip Morris Inc. , 551 N.W.2d 490, 493 (Minn. 1996).
The parties have not cited any caselaw concerning standing in the OAH, and we ar e
unaware of any such caselaw.
Smith raised the issue of standing at the evidentiary hearing. The hearing panel
expressly discussed and resolved the issue in its decision on the merits. The hearing panel
initially noted that the act does not impose any limits on who may file a complaint. The
9
hearing panel also noted that Points’s employment by the city made her responsible for
safeguarding city property and administering elections, that she fielded complaints about
RFTCC’s literature, and that she posted a disclaimer on the city’s website stating that the
city was not taking a position with respect to the ballot questions . The hearing panel
concluded that Points had an in terest in enforcing the act in light of the duties of her
position and, thus, had standing to file the complaint.
On appeal, Smith contends that Points did not have standing because there is no
legislative authorization for a city clerk to file a complaint under the Fair Campaign
Practices Act.3 As an initial matter, we question whether Points is the complainant. The
complaint itself states that the complainant is “City of Grant by City Administrator / Clerk,
Kim Points through City Attorney Nicholas J. Vivian.” The complaint was signed by only
one person, the city attorney. Smith does not contend that the city did not have standing to
file the complaint.
In any event, Smith’s contention ignores the reasoning of the hearing panel, which
did not conclude that Points had standing pursuant to a legislative enactment. Rather, the
hearing panel concluded that Points sustained a cognizable injury because of the nature of
her responsibilities as city clerk. Smith does not challenge t he hearing panel’s findings

3Smith contends, in part, that a city clerk may not file a complaint under the act
because “the only entity with the authority to prosecute, sue, or bring legal action is the
city council.” This contention is apparently based on a statute that specifies the powers of
a city council in a statutory city, which includes the power to “provide for the prosecution
or defense of actions or proceedings at law in which the city may be interested.” See Minn.
Stat. § 412.221, subd. 5 (2016). We do not consider the contention because Smith did not
preserve it by presenting it to the hearing panel. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988).
10
concerning Points’s duties. The hearing panel correctly noted that the Fair Campaign
Practices Act does not place any limits on who may file a complaint. The act states only
that a complaint “must be in writing, submitted under oath, and detail the factual basis for
the claim that a violation of law has occurred” and that it must be filed with OAH within
one year. Minn. Stat. § 211B.32, subds. 2, 3.
In light of the evidentiary record and the lack of any restrictions in the statute
concerning who may file a complaint, the hearing panel did not err by concluding that
Points had standing to file the complaint with OAH.
II. City as “Organization”
Smith next argues that the hearing panel erred by concluding, “The City is an
‘organization’ within the meaning of Minn. Stat. § 211B.02.”
As stated above, section 211B.02 prohibits “a false claim stating or implying that a
candidate or ballot question has the support or endorsement of a major political party or
party unit or of an organization.” Minn. Stat. § 211B.02 (emphasis added) . The term
“organization,” as used in section 211B.02, is not defined within the statute. The hearing
panel adopted the following definition: “A body of persons (such as a union or corporation)
formed for a common purpose.” Black’s Law Dictionary 1210 (9th ed. 2009) . Smith
contends that the term should be interpreted narrowly to include only private political
organizations but not governmental entities.4

4The city contends in response that Smith did not preserve this argument by
presenting it to the hearing panel. It appears that the city is correct that Smith did not
specifically argue to the hearing panel that the city is not an “organization” within the
11
To resolve Smith’s argument, we must engage in statutory interpretation. We begin
the task of interpreting a statute by asking “ whether the statute’s language, on its face, is
ambiguous.” American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).
A statute is unambiguous if it “is susceptible to only one reasonable interpretation.” Nelson
v. Schlener, 859 N.W.2d 288, 292 (Minn. 2015). If a statute is unambiguous, we “interpret
the words and phrases in the statute according to their plain and ordinary meanings. ”
Graves v. Wayman, 859 N.W.2d 791, 798 (Minn. 2015). A statute is ambiguous, however,
if it has “more than one interpretation.” Lietz v. Northern States Power Co. , 718 N.W.2d
865, 870 (Minn. 2006) (quotation omitted). If a statute is ambiguous, we apply “the canons
of statutory construction to determine its meaning. ” County of Dakota v. Cameron , 839
N.W.2d 700, 705 (Minn. 2013).
The common meaning of the word “organization,” in the sense it is used in section
211B.02, is “[a] group of persons organized for a particular purpose; an association,” or
“[a] structure through which individuals cooperate systematically to conduct busi ness.”
American Heritage Dictionary 1275 (3d ed. 199 2). That definition does not exclude a
municipality or any other governmental entity. The definition adopted by the hearing panel
previously was adopted by the supreme court in a case involving another statute. See
Nichols v. State, 858 N.W.2d 773, 777 (Minn. 2015) (interpreting Minn. Stat. § 181.64 and
quoting Black’s Law Dictionary 1274 (10th ed. 2014)). The supreme court noted that the
word “could encompass the State.” Id. If the definition of the word could encompass a

meaning of the statute. Nonetheless, the hearing panel considered the matter and made an
express conclusion of law on the issue.
12
state government, it is logical to conclude that the definition also could encompass a
municipal government. The word is not limited or restricted in any way as used in section
211B.02. Accordingly, we in terpret section 211B.02 to include municipalities within the
meaning of “organization.”
Thus, the hearing panel did not err by concluding that the city is an organization for
purposes of section 211B.02.
III. Findings of Fact
Smith next argues that the hearing panel erred in certain findings of fact. We review
Smith’s arguments to determine whether the hearing panel’s decision was supported by
substantial evidence. See Minn. Stat. § 14.69 (e); In re Application of Minn. Power , 838
N.W.2d 747, 757 (Minn. 2 013). To satisfy this standard, an agency’s finding must be
adequately explained and must be a reasonable conclusion based on the record. In re
Denial of Eller Media Co.’s Applications, 664 N.W.2d 1, 7 (Minn. 2003). “We defer to an
agency’s conclusions regarding conflicts in testimony” and “inferences to be drawn from
testimony.” In re Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001).
Smith’s primary argument concerns the hearing panel’s finding that he “knowingly
made a false claim that the City endorsed” certain positions on the ballot questions.
(Emphasis added.) As an initial matter , he contends that the hearing panel erred because
its legal conclusion was not based on an accompanying finding of fact. Smith is correct
that the statement quoted above is made under the heading “Conclusions of Law,” not in
the previous section under the heading “Findings of Fact.” But the heading s are
immaterial. We construe findings of fact and conclusions of law according to their true
13
nature, regardless of labels. Specifically, “a fact found by the court, although expressed as
a conclusion of law, will be treated upon appeal as a finding of fact.” Big Lake Lumber,
Inc. v. Security Prop. Invs., Inc. , 836 N.W.2d 359, 366, n.8 (Minn. 2013) (quot ation
omitted). Whether a person knowingly made a false claim is a question of fact. In re
Contest of Election in DFL Primary , 344 N.W.2d 826 , 830 (Minn. 1984). Accordingly,
we construe the hearing panel’s determination that Smith acted knowingly as a finding of
fact.
Smith argues that the city failed to prove that he knowingly violated section
211B.02. A knowing violation requires proof that he “knew that his literature falsely
claimed or implied” that the city had endorsed RFTCC’s position on the ballot questions.
In re Ryan, 303 N.W.2d 462, 467 (Minn. 1981). Smith contends that there is a lack of
evidence of culpable knowledge because he denied any knowledge that RFTCC’s literature
made a false claim. But other evidence tends to show that Smith knew that the literature
made a false claim. Smith admitted that some of the mailings he delivered bore the city’s
logo. He testified that he knew that the city had not taken any official position on the ballot
questions. He testified that he knew that RFTCC’s literature reproduced the sample ballot
that had been published by the city. He testified that RFTCC used the city’s “Grant News”
logo to capitalize on the meaning of the word “news .” He also testified that he thought
about whether the literature was within permissible bounds and concluded that the city did
not have any protectable interest in its logo and that RFTCC’s use of the city’s logo would
not be confusing. That evidence is similar to the evidence introduced in the DFL Primary
case, in which t he candidate testified that she “used the sample ballot because it was a
14
common campaign tec hnique used to influence voters, ” which demonstrated that the
candidate knowingly implied that she had the endorsement of the DFL party . DFL
Primary, 344 N.W.2d at 831. Furthermore, the evidence establish ing that the literature
made a false claim of endorsement also supports an inference that Smith knew that the
literature made a fals e claim of endorsement . See State v. Siirila , 292 Minn. 1, 10, 193
N.W.2d 467, 473 (1971) (concluding that circumstantial evidence is sufficient to establish
knowledge). To be more specific, the flyer and the brochure were introduced into evidence
as exhibits, as were exemplars of the city’s printed materials and website, and the hearing
panel naturally was able to compare those documents to each other. We have reviewed the
exhibits as well and are struck by the similarity of the RFTCC literature to the city’s printed
materials and website in ways that are difficult to describe in words but surely were obvious
to the person or persons responsible for sending them. See Jacobellis v. State of Ohio, 378
U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Ste wart, J., concurring). Thus, the hearing
panel’s determination that Smith knowingly made a false claim is supported by substantial
evidence.
Smith challenges a few other findings of the hearing panel on peripheral issues. For
example, Smith challenges factual statements concerning the year in which the city adopted
its logo, the dates stated in e -mail messages that may have been incorrectly stated, and
whether a logo was “small.” None of these factual issues is material. Whether these factual
statements are correct or incorrect has no effect on the hearing panel’s ultimate conclusion.
For that reason, we need not consider Smith’s arguments on immaterial factual issues.
15
Thus, because the hearing panel’s factual findings are supported by substantial
evidence, the hearing panel did not err in its findings of fact.
IV. Constitutionality
Smith next argues that the hearing panel’s decision is in conflict with the United
States Constitution, for three reasons.
A. First Amendment Challenge
Smith argues that section 211B.02 violates his First Amendment right to free speech
because it penalizes political speech without a compelling governmental interest. In
response, the city argues that section 211B.02 serves a compelling interest by “preventing
electorate confusion and avoiding false speech that misleads the public regarding elections
and harm[s] the political process.”
A content-based restriction on a person’s speech is presumed to be unconstitutional,
and the burden lies with the government to d emonstrate that such a restriction is
constitutional. State v. Melchert -Dinkel, 844 N.W.2d, 13, 18 (Minn. 2014). “Content-
based restrictions on speech survive First Amendment strict -scrutiny analysis only if they
are necessary to serve a compelling state interest and are narrowly drawn to achieve that
end.” Prolife Minnesota v. Minnesota Pro-Life Comm., 632 N.W.2d 748, 753 (Minn. App.
2001), review denied (Minn. Oct. 24, 2001). A statute is narrowly tailored if it advances a
compelling state interest in the “least restrictive means among available, effective
alternatives.” Ashcroft v. American Civil Liberties Union , 542 U.S. 656, 666, 124 S. Ct.
2783, 2791 (2004).
16
We do not characterize s ection 211B.02 as a content-based restriction in the s ense
that it regulates the content of the speaker’s support or endorsement of (or opposition to) a
particular candidate or ballot question. Rather, section 211B.02 is a content -based
restriction only insofar as it regulates speech concerning the identity of the speaker.
Section 211B.02 simply prohibits a speaker from misrepresenting himself, herself, or itself
by purporting to make a statement on behalf of “a major political party or party unit or of
an organization.” But the United States Supreme Court has stated that “the identity of the
speaker is no different from other components of the document ’s content” and, thus, is
subject to First Amendment protection. McIntyre v. Ohio Elections Comm ’n, 514 U.S.
334, 348, 115 S. Ct. 1511, 1519 (1995). The Supreme Court also has stated that a state has
a legitimate “interest in preventing fraud” in that type of speech and that the state’s interest
“carries special weight during election campaigns when false statements, if credited, may
have serious advers e consequences for the public at large. ” Id. at 348-49, 115 S. Ct. at
1519-20.
Although a state may not constitutionally prohibit anonymous leaflets , see id. at
357, 115 S. Ct. at 1524, a leaflet that misrepresents the identity of its author is another
matter. In another recent case, the United States Supreme Court upheld the
constitutionality of a state law that allows for public disclosure of the signatures on a
petition for a referendum. John Doe No. 1 v. Reed, 561 U.S. 186, 200-02, 130 S. Ct. 2811,
2821 (2010). The Court reasoned that the state has a compelling interest in preserving the
integrity of the electoral process and preventing or detecting fraudulent signatures, “which
not only may produce fraudulent outcomes, but [may] ha[ve] a systemic effect as well” by
17
“driv[ing] honest citizens out of the democratic process and breed [ing] distrust of our
government.” Id. at 197, 130 S. Ct. at 2819 (quotation omitted). That is essentially the
city’s argument in this case. Our supreme court has recogn ized that p reventing voter
confusion in an election is a compelling state interest. Schmitt v. McLaughlin, 275 N.W.2d
587, 591 (Minn. 1979). Accordingly, we agree with the city that the state has a compelling
interest in pr oscribing political speech that fraudulently misrepresents the identity of the
speaker.
Smith also argues that section 211B.02 is not narrowly tailored because it proscribes
not only statements that expressly state a false claim of endorsement but also statements
that merely imply such a false claim. In response, t he city cites Schmitt, in which the
supreme court concluded that a predecessor statute was “narrowl y drawn” to serve a
compelling governmental interest because it was “directed specifically at false claims of
endorsement or support.” Schmitt, 275 N.W.2d at 590-91 (applying Minn. Stat. § 210A.02
(1978)). The version of the statute at issue in Schmitt was identical insofar as Smith’s
argument is concerned because it prohibited a person from “ mak[ing], directly or
indirectly, a false claim stating or implying that the candidate has the support or
endorsement of any political party, or unit t hereof, or of any organization.” Minn. Stat.
§ 210A.02 (1978) (emphasis added) . Smith’s argument that section 211B.02 is not
narrowly tailored is foreclosed by Schmitt.
Thus, section 211B.02 does not violate Smith’s First Amendment right to free
speech.
18
B. Challenge Concerning Actual Malice
Smith next argues that the hearing panel erred by not requiring the city to prove that
he acted with actual malice. In response, the city argues that Smith failed to preserve this
argument because he did not present it to the hearing panel. The city is correct that Smith
did not present the argument to the hearing panel. But Smith did not have an obligation to
do so because an ALJ or panel of ALJs is not empowered to declare a statute facially
unconstitutional. Pine County v. State Dep’t of Natural Resources , 280 N.W.2d 625, 629
(Minn. 1979); In re Rochester Ambulance Serv ., 500 N.W.2d 495, 499 -500 (Minn. App.
1993).
Smith relies on the United States Supreme Court’s decision in New York Times v.
Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), in which the Court held that a state could not
impose liability on a defendant alleged to have libeled a public figure unless the defendant
acted with actual malice, i.e., with “knowledge that it was false or with reckless disregard
of whether it was false or not.” Id. at 279-80, 84 S Ct. at 726. In a case concerning a
different section of the Fair Campaign Practices Act, the Minnesota Supreme Court noted
that the text of that statutory provision (which prohibited a statement “the person knows is
false or communicates to others with reckless disregard of whether it is false”) “closely
tracks the standard for actual malice” in New York Times v. Sullivan . Abrahamson v. St.
Louis County Sch. Dist. , 819 N.W.2d 129, 137 (Minn. 20 12) (applying Minn. Stat.
§ 211B.06, subd. 1 (20 10)). But the language of section 211B.02 is different from the
language of the statute at issue in Abrahamson. There is no textual basis in section 211B.02
for a requirement that a complainant prove actual malice . T here also is no Minnesota
19
authority for imposing such a requirement as a constitutional matter . In Abrahamson, the
supreme court conducted a statutory analysis, not a constitutional analysis. Id. at 137-39.
Having concluded that section 211B.02 is not an unconstitutional abridgement of the right
to free speech, see supra part IV.A., we have no reason to superimpose an actual -malice
standard on the statute’s requirement of a knowing violation.
C. Due Process Challenge

Smith last argues that section 211B.35 is unconstitutional on the ground that it does
not allow him to conduct discovery, thereby exposing him to a civil penalty without due
process. Smith contends that, without discovery, he did not have notice of the evidence
against him, which impeded his ability to defend against the city’s complaint. A rule of
appellate procedure protects the attorney general’s right to intervene and defend a
Minnesota statute by requiring a party who challenges the constitutionality of a statute to
“file and serve on the attorney general notice of that assertion within time to afford an
opportunity to intervene.” Minn. R. Civ. App. P. 144. If an appellant fails to notify the
attorney general of a constitutional challenge, this court deems the constitutional challenge
waived. See Losen v. Allina Health Sys., 767 N.W.2d 703, 711 (Minn. App. 2009), review
denied (Minn. Sept. 29, 2009). Smith failed to notify the attorney general of this particular
constitutional challenge. His statement of the case referred to his constitutional challenge
to section 211B.02, but he did not provide notice that he intended to challenge the
constitutionality of section 211B.35. Thus, we will not consider the issue.
20
V. Karen Smith’s Request for Costs
Karen Smith argues that the hearing panel erred by not granting her request for
reimbursement of her costs. She contends that the city should be responsible for her costs
on the ground that the city did not have any evidence that she was responsible for the
RFTCC’s campaign literature such that the complaint against her was frivolous.
The Fair Campaign Practices Act provides that a panel of ALJs may “order the
complainant to pay the respondent’s reasonable attorney fees” if the panel “determines the
complaint is frivolous.” Minn. Stat. § 211B.36, subd. 3 (2016). Karen Smith requested
reimbursement of her costs in conjunction with her pre-hearing motion to dismiss . T he
presiding ALJ denied her motion to dismiss at that stage of the proceedings. The presiding
ALJ reasoned, “When all of the facts in the City’s complaint are considered true, and all
inferences drawn [in] its favor, the City has stated a proper claim under Minn. Stat.
§ 211B.02.” The record supports this reasoning inasmuch as Karen Smith ’s name was
listed among the persons supporting RFTCC’s viewpoints and her home address was
shown at the bottom of the literature, which was attached to the complaint . We find no
fault in the ALJ’s reasoning in denying Karen Smith’s pre-hearing motion to dismiss. That
the hearing panel ultimately dismissed her from the case at the evidentiary hearing, based
on a lack of evidence at the conclusion of the city’s case, does not mean that the complaint
was frivolous. Karen Smith does not argue that the hearing panel erred b y denying her
motion for reconsideration.

21
Thus, the hearing panel did not err by not ordering the city to reimburse Karen Smith
for her costs.
Affirmed.