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Perspectives: Appeals address anti-SLAPP actions

Marshall H. Tanick//March 12, 2015//

Perspectives: Appeals address anti-SLAPP actions

Marshall H. Tanick//March 12, 2015//

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“Litigious terms, fat contentions and flowing fees.”  – John Milton, Tractate of Education (1644)

It wasn’t a very Merry Christmas, nor a Happy New Year, for claimants in anti-SLAPP suits in Minnesota during the holiday season at the end of 2014.

Shortly before concluding its work in 2014, the Minnesota Court of Appeals addressed three actions arising under the anti-SLAPP law, Minn. Stat. § 554.02. The measure, formally known as Strategic Litigation Against Public Participation, immunizes some parties from tort liability if they are engaged in efforts to influence governmental actions. Minnesota, where the law has been in effect since 1994, is one of more than 30 states that recognizes anti-SLAPP litigation, most by statutes and a few by common law.

As is true of most litigation of this genre, the anti-SLAPP suits at the Minnesota appellate court were highly charged and volatile. All of the claimants lost their cases, although one may survive in remand proceedings in District Court, and another raises the specter of an award of attorney’s fees against the claimants, which will be decided on remand as well.

Litigation longevity

A decade of litigation that redefined anti-SLAPP jurisprudence may have come to a conclusion, despite its Lazarus-like longevity, due to the ruling by the Court of Appeals in Leiendecker v. Asian Women United of Minnesota, 2014 WL 7011061 (Minn. Ct. App. Dec. 15, 2014) (unpublished). Reviewing the case on remand from the Minnesota Supreme Court, 848 N.W.2d 224 (Minn. 2014), the Court of Appeals determined that the defendant organization made a threshold showing to warrant immunity, but remanded to the Hennepin County District Court to decide if the claimants can overcome that showing under the two-prong analysis called for under the statute and case law.

Reciting the Supreme Court’s rationale, the appellate court noted that the first step in the analysis is to decide whether the party claiming statutory immunity has shown that its conduct triggering the suit constitutes a legitimate attempt “of procuring favorable governmental action.” If established, the burden then shifts to the claimant, to prove a negative: demonstrating by “clear and convincing evidence” that the other party’s behavior is “not immune.”

The first prong was satisfied in this case, which asserted claims of malpractice and malicious prosecution against a married couple who were sued in multiple cases for legal malpractice and conversion by a nonprofit organization that one of them previously served as a director and the other as an attorney doing pro bono work. The group met its “minimal threshold burden” because the prior lawsuit sought to secure favorable government action “by way of the judicial branch.” Those previous lawsuits fall within the immunity provision of the statute, § 554.01, subds. (2) and (6) because they were “generally seeking favorable judicial decisions in both lawsuits.”

Therefore, this long standing case, the fifth in a series of lawsuits between the parties, was sent back to the trial court to perform the second part of the requisite analysis: determining whether the claimants can clearly and convincingly overcome the prima facie immunity by showing the commission of tortious or unconstitutional conduct by the organization, which would eviscerate the statutory defense under § 555.04, subd. 2.

Letter lawsuit

A defamation negligence lawsuit by an Orono man against his neighbors for writing a letter to the local police complaining about his “belligerent” behavior was dismissed under the statute a week later in Nygard v. Walsh, 2014 WL 7344058 (Minn. Ct. App. Dec. 22, 2014) (unpublished). The Hennepin County District Court dismissed the case and the appellate court affirmed, holding that the lower court properly “analyzed the two prongs of the statute.”

The letter is covered by the statute because it did “call on” the police and city officials “to take action against” the “combative” neighbor. The expression of “safety concerns” in the correspondence was directed to the “proper parties” and the claimant neighbor did not carry his burden of establishing “by clear and convincing evidence” that the letter was tortuous.” The letter was not defamatory because it contained opinions, rather than the “false statement of fact.” There was no negligence cause of action because there was no duty owed to their neighbor. Thus, the case was dismissed.

The dismissal resulted in the same fate as a related case by the same claimant against another neighbor, who made oral complaints at a city council meeting, that lawsuit had previously been dismissed under the anti-SLAPP law as well. Nygard v. Walsh, 2014 WL 349761 (Minn. App. Feb. 3, 2014)(unpublished), review den’d. (Minn. Sept. 24, 2014).

Future fees

A week later another anti-SLAPP case was dismissed while leaving open the prospect for a future award of attorney’s fees for the defendants, in Zutz v. Nelson, 2014 WL 7344058 (Minn. Ct. App. Dec. 29, 2014) (unpublished). Like the other cases, this one also was the latest chapter in long-standing litigation.

The appellate court, affirming a decision of the Marshall County District Court, dismissed a lawsuit by two of the seven managers of Middle Snake Tamarac Rivers Watershed District against co-managers of the agency for defamation and slander, claiming that the defendant managers made defamatory statements against them. The case reached the Supreme Court, which reversed a determination of absolute immunity for the defendants and remanded for application of a “qualified rather than absolute privilege [for] members of watershed district boards.” 788 N.W.2d 58, 66 (Minn. 2010). The lower court granted summary judgment for the defendants on grounds, but also ruled that the anti-SLAPP law was not applicable as a defense.

The appellate court concurred with the first determination, holding that there was insufficient showing that the defendants acted with “actual malice,” which was necessary for pursuit of defamation claims by the claimants, who were public officials under the New York Times standard, New York Times v. Sullivan, 376 U.S. 254 (1964).

But the court sent the case back to the trial court to determine if the ANTI-SLAPP law could be invoked by the defendants. The plain language of the statute does not preclude its application to public officials. Further, the statements made by them, while serving in their managerial capacity, may constitute public participation, which is statutorily protected. The contention that the law was not intended to cover lawsuits against government officials was rejected because the relevant statutory language was unambiguous. Therefore, the statutory definition of public participation extends to the statements made by the defendant watershed district managers at a public meeting and they made the necessary minimal showing that they are covered by the anti-SLAPP law.

The trial court must now determine whether the claimants can produce clear and convincing evidence that the defendants are not entitled to immunity. If the defendants prevail below, the district court must determine reasonable attorney’s fees owing to them by the claimants, which is mandatory under § 555.04721.

This trio of cases shows the high standards required for claimants to survive when their lawsuits encounter the venerable anti-SLAPP statute.

Perspectives Pointers

Key Provisions of anti-SLAPP Law

  • Immunity exists for “public participation;”
  • “Public participation” is conduct genuinely attempting to “procure favorable governmental action;”
  • Immunity can be overcome by clear and convincing showing of tortious violation of constitutional rights;
  • Discovery may be stayed while these issues are resolved; and
  • Successful defendants may be entitled to reasonable attorney’s fees.

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