STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0127
Barbara Linert, et al.,
Respondents,
vs.
Michelle MacDonald,
Relator,
Office of Administrative Hearings,
Respondent.
Filed September 11, 2017
Affirmed
Bjorkman, Judge

Office of Administrative Hearings
File No. OAH 71-0320-33929
John M. Baker, Katherine M. Swenson, Karl C. Procaccini, Christopher L. Schmitter,
Greene Espel PLLP, Minneapolis, Minnesota (for respondents Barbara Linert, et al.)
Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
relator)
Lori Swanson, Attorney General, St. Paul, Minnesota (for respondent Office of
Administrative Hearings)
Considered and decided by Bjorkman, Presiding Judge; Cleary, Chief Judge; and
Bratvold, Judge.

 SYLLABUS
Minn. Stat. § 211B.02 (2016), which prohibits candidates from knowingly making
false claims of support or endorsement, is not facially overbroad in violation of the First
Amendment.
OPINION
BJORKMAN, Judge
Relator challenges an order issued by the Minnesota Office of Administrative
Hearings (OAH) determining that she violated Minn. Stat. § 211B.02, arguing OAH lacked
jurisdiction and that the statute is unconstitutionally overbroad. We affirm.
FACTS
In 2016, relator Michelle MacDonald was a candidate for the Minnesota Supreme
Court. During her campaign, she sought the endorsement of the Republican Party of
Minnesota (the RPM), which had endorsed her during her unsuccessful 2014 campaign.
Prior to the RPM’s 2016 state convention, MacDonald was interviewed by the party’s
judicial-election committee. The committee is authorized to recommend candidates for
endorsement by the RPM but does not itself endorse candidates. The committee voted
20-2 to recommend MacDonald’s endorsement to the RPM. The RPM ultimately decided
not to endorse any candidate in the Minnesota Supreme Court race. MacDonald therefore
did not receive the RPM’s endorsement.
On October 18, 2016, the Star Tribune published a “Voter Guide” with profiles of
candidates running for various state offices, including MacDonald. The profile was based
on information submitted by MacDonald. The “Endorsements” section indicated that
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 MacDonald received an endorsement from “GOP’s Judicial Selection Committee 2016.”
On October 21, MacDonald requested that the claimed endorsement be removed from her
candidate profile. The Star Tribune removed the endorsement.
Respondents Barbara Linert and Steven Timmer (Linert) subsequently filed a
complaint with OAH. They alleged that, in claiming the judicial-election committee
endorsed her, MacDonald violated Minn. Stat. § 211B.02. An administrative-law judge
(ALJ) found probable cause to believe that MacDonald violated the statute. Following an
evidentiary hearing, a panel of three ALJs determined that MacDonald violated the statute
by knowingly claiming an endorsement that she had not in fact received. OAH imposed a
$500 civil penalty. MacDonald appeals by writ of certiorari.
ISSUES
I.

Did OAH have subject-matter jurisdiction?

II.

Is Minn. Stat. § 211B.02 unconstitutionally overbroad?
ANALYSIS

I.

OAH had subject-matter jurisdiction.
Subject-matter jurisdiction refers to the tribunal’s “authority to hear the type of

dispute at issue and to grant the type of relief sought.” Seehus v. Bor-Son Constr., Inc.,
783 N.W.2d 144, 147 (Minn. 2010). Because subject-matter jurisdiction goes to the
authority of the decision-maker to hear the case, it may not be waived and can be raised for
the first time on appeal. Witzke v. Mesabi Rehab. Servs., Inc., 768 N.W.2d 127, 129 (Minn.
App. 2009). Subject-matter jurisdiction “is a question of law that we review de novo.”
Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015).
3

 MacDonald argues that OAH lacked subject-matter jurisdiction because the
newspaper’s voter guide does not constitute campaign material, as defined by Minn. Stat.
§ 211B.01 (2016). But this argument relates to the merits of Linert’s complaint, not
whether OAH had authority to consider it.1 Indeed, the legislature expressly provided that
complaints asserting false-endorsement claims must be filed with and decided by OAH in
the first instance. Minn. Stat. § 211B.32, subd. 1(a) (2016). Accordingly, OAH had
subject-matter jurisdiction.
II.

Minn. Stat. § 211B.02 is not unconstitutionally overbroad.
The constitutionality of a statute is a question of law, which we review de novo.

Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014). While statutes generally carry a
presumption of constitutionality, a statute restricting speech does not; the burden rests with
the government to demonstrate that such a statute is constitutional. Hornell Brewing Co.
v. Minn. Dep’t of Pub. Safety, 553 N.W.2d 713, 716 (Minn. App. 1996).
Section 211B.02 provides:
A person 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.

Moreover, whether the voter guide is a campaign material is irrelevant. Linert’s
complaint does not allege a section 211B.02 violation based on falsity of campaign
materials.
1

4

 Because the statute prohibits speech based on its content, the statute implicates the
protection afforded by the First Amendment.
The First Amendment, which applies to the states through the Fourteenth
Amendment, provides that “Congress shall make no law . . . abridging the freedom of
speech.” State v. Melchert-Dinkel, 844 N.W.2d 13, 18 (Minn. 2014) (quoting U.S. Const.
amend. I) (quotation marks omitted). The amendment establishes that the government
generally “has no power to restrict expression because of its . . . content.” Id. (quotation
omitted). Statutes regulating the content of speech are presumptively invalid and subject
to strict-scrutiny analysis. State v. Crawley, 819 N.W.2d 94, 100 (Minn. 2012). “Contentbased 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 Minn. v. Minn. 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. Am. Civil Liberties Union, 542 U.S. 656, 666, 124 S. Ct. 2783,
2791 (2004).
One such compelling state interest is promoting informed voting and protecting the
political process. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348-49, 115
S. Ct. 1511, 1519-20 (1995) (stating that a state has a special interest during elections in
preventing false statements that, if credited, may have serious consequences for the public);
Daugherty v. Hilary (In re Contest of Election in DFL Primary), 344 N.W.2d 826, 832
(Minn. 1984) (stating that promoting informed voting is “essential in a free society”);
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 Schmitt v. McLaughlin, 275 N.W.2d 587, 591 (Minn. 1979) (determining the state has a
compelling interest in “protecting the political process”). MacDonald does not appear to
challenge this jurisprudence. We are persuaded that section 211B.02’s prohibition against
false claims of support or endorsement serves a compelling state interest.
MacDonald contends that section 211B.02 is not narrowly tailored to serve this
compelling interest because it is facially overbroad. “A statute is overbroad on its face if
it prohibits constitutionally protected activity, in addition to activity that may be prohibited
without offending constitutional rights.” Dunham v. Roer, 708 N.W.2d 552, 565 (Minn.
App. 2006) (quotation omitted), review denied (Minn. Mar. 28, 2006). The overbreadth
must substantially sweep outside the statute’s plainly legitimate aim. United States v.
Williams, 553 U.S. 285, 292, 128 S. Ct. 1830, 1838 (2008). A statute is not substantially
overbroad when its excessive sweep can be cured on a case-by-case basis through an
as-applied challenge. State v. Washington-Davis, 881 N.W.2d 531, 540 (Minn. 2016).
Courts apply the overbreadth doctrine “only as a last resort.” Dunham, 708 N.W.2d at 565
(quotation omitted).
The plainly legitimate purpose of Minn. Stat. § 211B.02 is preventing false speech
that misleads the public regarding elections.

MacDonald argues that the statute

substantially sweeps outside this aim and chills truthful political speech because “a
candidate cannot truthfully report a sub-unit’s endorsement without threat of a violation
that the statement is false because [the RPM] did not endorse.”
unavailing.

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This argument is

 First, the statute on its face only prohibits a candidate from making a “knowingly
. . . false claim.” Minn. Stat. § 211B.02. Truthful political speech is not proscribed by the
statute. In Schmitt, our supreme court considered a predecessor statute of section 211B.02
that similarly prohibited a candidate from making a false claim of endorsement or support
from a political party or sub-unit of a political party. 275 N.W.2d at 590.2 The supreme
court observed the statute was narrowly tailored to defeat an overbreadth challenge because
it was “directed specifically at false claims of endorsement or support.” Id. at 590-91
(emphasis added). Moreover, the statute’s specific-intent requirement—that false claims
be knowingly made—ensures that “the statute does not target broad categories of speech.”
State v. Muccio, 890 N.W.2d 914, 928 (Minn. 2017).
Second, we reject MacDonald’s contention that the statute prohibits a candidate
from truthfully reporting receipt of a party sub-unit’s endorsement. Neither the statutory
language nor OAH’s decision supports MacDonald’s assertion that the statute prohibits her
from claiming endorsement or support of a sub-unit of the RPM because the party did not
endorse her. OAH’s determination that she violated section 211B.02 was not based on the
fact that the RPM did not endorse her. Rather, OAH found that she violated the statute by
claiming that the judicial-election committee endorsed her when it had not and lacked the
authority to do so.3 Indeed, OAH observed that MacDonald “could have truthfully stated

Although the Schmitt court framed the issue as implicating due process, the court’s
analysis focused on the First Amendment.
2

At oral argument, MacDonald’s counsel indicated that she is not challenging OAH’s
determination that her conduct violated section 211B.02.
3

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 in her candidate profile that a majority of the RPM’s judicial election committee supported
her candidacy.” It is the falsity of her statement that the committee endorsed her candidacy
that violated the statute.
Third, we are not convinced that there are effective less-restrictive means to promote
the state’s compelling interest in promoting informed voting and protecting the political
process from false claims of support or endorsement. MacDonald relies on United States
v. Alvarez, 567 U.S. 709, 132 S. Ct. 2537 (2012) (plurality opinion), to support her assertion
that counterspeech is a less-restrictive means to promote the state’s interest. In Alvarez,
the United States Supreme Court held that the Stolen Valor Act’s prohibition against falsely
claiming receipt of military decorations or medals is unconstitutional. 567 U.S. at 729-30,
132 S. Ct. at 2551. After determining that “[t]he Government’s interest in protecting the
integrity of the Medal of Honor is beyond question,” the Supreme Court considered
whether counterspeech would effectively protect this interest. Id. at 725, 132 S. Ct. at
2549. The government argued that the truthful-speech remedy was not effective because
some military records are lost so the invalidity of certain false claims could not be proved.
Id. at 728, 132 S. Ct. at 2550. The Supreme Court rejected this argument, concluding that
the government failed to make the necessary showing that the “unchallenged claims
undermine the public’s perception of the military and the integrity of its awards system.”
Id.
In contrast, this court concluded that counterspeech is not an effective and lessrestrictive means to achieve the compelling interest advanced by section 211B.02 in Niska
v. Clayton. No. A13-0622, 2014 WL 902680, at *10 (Minn. App. Mar. 10, 2014), review
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 denied (Minn. June 25, 2014). Niska involved a claim that false campaign materials
violated section 211B.02. This court emphasized the different state interests reflected in
the Stolen Valor Act and section 211B.02, stating, “[a]t stake in Alvarez was the dishonest
speaker’s reputation; at stake under [section 211B.02] is an accurately informed
electorate.” Id. And this court concluded “[t]he state need not rely on media corrections
to vindicate its interest in protecting the electorate from falsehoods and safeguarding the
integrity of its elections.” Id. While the court’s unpublished decision in Niska does not
bind us, we find its reasoning persuasive. See City of St. Paul v. Eldredge, 788 N.W.2d
522, 526-27 (Minn. App. 2010) (stating unpublished opinions are not precedential but
“may have persuasive value”), aff’d, 800 N.W.2d 643 (Minn. 2011). Informed voting is
“essential in a free society.” Daugherty, 344 N.W.2d at 832. MacDonald has not
demonstrated, and we are not persuaded, that counterspeech—even media statements and
retractions—is an effective alternative means to combat false claims of support or
endorsement. This is particularly true with respect to false claims made in the final days
leading up to an election.
Finally, we disagree with MacDonald’s argument that the threat of prosecution
under section 211B.02 chills truthful speech. She contends that candidates are “easy
targets” for meritless complaints and the statute therefore discourages candidates from
making truthful claims of support or endorsement. But the statutory complaint process
contains procedural safeguards to protect against such abuse.

Complaints of unfair

campaign practices, including those filed under section 211B.02, are subject to mandatory
prima facie review by an ALJ within three days of filing. Minn. Stat. § 211B.33, subd. 1
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 (2016). The ALJ must dismiss complaints that do not set forth a prima facie violation. Id.,
subd. 2(a) (2016). If a complaint establishes a prima facie violation, the ALJ may be
required to conduct an expedited probable-cause hearing. Id., subd. 2(c) (2016). If the
ALJ does not dismiss a complaint following the probable-cause hearing, it must schedule
an evidentiary hearing before a three-judge panel. Minn. Stat. §§ 211B.34, subd. 2(b), .35,
subd. 1 (2016). And we note that complaints must be submitted under oath, further
discouraging the filing of false complaints. Minn. Stat. § 211B.32, subd. 3 (2016); see also
Minn. Stat. § 609.48, subd. 1(2) (2016) (defining the crime of perjury to include making a
knowingly false statement “in any writing which is required . . . to be under oath”). In sum,
we are not persuaded that the threat of prosecution impermissibly chills protected speech.
DECISION
On this record, we conclude that section 211B.02 is not unconstitutionally
overbroad. The statute is narrowly tailored to serve the state’s compelling interest in
promoting informed voting and protecting the political process and does not substantially
sweep outside the statute’s legitimate aim. Because the statute is not unconstitutionally
overbroad and OAH had subject-matter jurisdiction to consider Linert’s complaint against
MacDonald, we affirm OAH’s decision.
Affirmed.

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