ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, September 24, 1996 TAG: 9609240075
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: MINNEAPOLIS
SOURCE: Associated Press
NOTE: Below
A state Senate candidate whose picture was mistakenly published on primary day with a story about a fraud case asked a judge Monday to order a new election and make the Star Tribune newspaper pay for it.
John Derus said in a lawsuit filed in state court that the use of his photo with the unrelated article about a charity fraud in Philadelphia ``obstructed or prevented the free exercise of the right to vote by the voters in the primary.''
``It's fine that they're sorry about what they did, but that doesn't begin to solve our problems,'' Derus said Monday.
He suggested that the newspaper may have acted deliberately.
Under state law, a new primary can be held only if there is proof of a ``serious, material and deliberate'' violation of election law.
Derus, a Democrat, lost to Linda Higgins by 104 votes out of about 6,300 cast in the Minneapolis district Sept. 10.
Although his name was not printed with the photo, Derus said the juxtaposition of his image with the words ``charity fraud'' cost him votes. He wants the newspaper to pay for a new primary, estimated at $20,000, and cover his legal fees.
The newspaper has said the photo mix-up was an innocent mistake that stemmed from a computerized system that assigns numbers to photographs for placement on a page. Old photos had not been properly cleared from the system, the newspaper said.
The Star Tribune, which had criticized Derus in editorials and opposed his 1993 run for mayor of Minneapolis, corrected the mistake the day after the primary and apologized to Derus.
Editor Tim McGuire said he met with Derus for 31/2 hours and apologized again for the ``inadvertent error.''
``I believe this case has come to be more about politics and past editorial positions of an editorial staff which operates independent of the newsroom, than it is about a photo mix-up,'' McGuire said Monday.
McGuire wouldn't comment further, but he said earlier this month that the paper would resist paying for a new primary because it ``makes no sense.''
Paul Hannah, a media lawyer not involved in the case, said Derus would have difficulty proving either that the newspaper was out to get him or that the story caused his loss.
And he would have even more trouble getting a judge to force the newspaper to pay for a new primary, Hannah said.
Similarly, Donald Gillmor, professor of media ethics and law at the University of Minnesota, said the chance of having the newspaper pay for the election is ``zero'' because of First Amendment protections.
``It seems to me to require a newspaper to get involved in the electoral process is pushing on freedom of speech and press too hard,'' he said.
For days after the primary, radio talk-show callers speculated that someone at the Star Tribune sabotaged Derus' campaign because of his opposition to abortion and other positions. The paper has criticized Derus in editorials and opposed his 1993 run for mayor of Minneapolis.
As evidence that the mix-up may have been intentional, Derus' lawyer, Brian Rice, cited a sworn statement by a man who said he called the newspaper to complain about the Derus photo.
An unidentified female employee at the Star Tribune told the man that the use of the photo ``may have been a personal act of vengeance by an individual employee for which the Star Tribune is not responsible,'' according to the statement signed by Lawrence Koenig.
``We'd like to ask her under oath what she meant by that and what she knows,'' Rice said.
LENGTH: Medium: 73 lines ILLUSTRATION: PHOTO: (headshot) Derus. color. KEYWORDS: POLITICSby CNB