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SLAPP Suit Suggestions

Minnesota is one of about 33 states which have laws, either by statute or court rulings, that provide a significant defense for parties who are sued for defamation or other torts, or violations of constitutional rights, when the underlying behavior that prompts the litigation involved seeking favorable governmental action.  The Minnesota statute, enacted in 1994, is known as an anti-SLAPP law, which stands for Strategic Litigation Against Public Participation.  The measure, Minn. Stat. § 554.01, et seq., basically provides that a defendant may seek to halt the litigation, including pretrial discovery, by asserting that the conduct giving rise to the lawsuit involved efforts to engage in “public participation,” which the law defines as genuine efforts aimed at “procuring favorable governmental action.”

This type of contention often arises in connection with defamation lawsuits or other torts in which the party bringing the suit claims that the other party alleges wrongful behavior by the other party, who may then defend the action by showing that the conduct was directed at securing some type of favorable governmental action. The kind of governmental action that might be covered by the statute include, but are not necessarily limited to, the following:

  • Concerns expressed to law enforcement personnel;
  • Communications made to elected officials seeking some type of administrative or legislative action;
  • Matters brought up at meetings of legislative bodies, such as city councils, county boards, or licensing agencies;
  • Lawsuits through the judicial process.

The Minnesota courts have wrestled with these cases for two decades, but 2014 was a particularly significant year for this genre of litigation, which often are acrimonious and highly charged because of deep seated emotions between the parties.  Last year, the Minnesota Supreme Court established new guidelines for handling these type of cases and, at the end of the year, a trio of rulings by the Minnesota Courts of Appeals, all reflect how these standards are being applied. 

In Leindecker v. Asian Women United of Minnesota, Nos. A12-1978, A12-2015, 2014 WL 7011061 (Minn. Ct. App. Dec. 15, 2014) (unpublished), the appellate court, upon direction from the Supreme Court, applied a two-part inquiry into addressing these issues.  The first step is to determine whether the conduct complained of in the lawsuit falls within the “public participation” provision of the law, meaning whether it was aimed at procuring “favorable  governmental action.” The defendant must make only a “minimal showing” to satisfy this standard.  If so, the burden then shifts to the party bringing the lawsuit to prove a negative, that the conduct is tortious or constitutes a violation of constitutional rights. To do so, the party must satisfy a high standard, meeting the burden by “clear and convincing evidence.” 

In the Leindecker case, the appellate court, addressing litigation dating back a full decade, held that the defendant, a nonprofit organization, satisfied its prong by showing that two lawsuits that it had brought for legal malpractice and conversion were efforts to procure “favorable governmental action.”  The court then sent the matter back to the Hennepin County District Court for a determination whether the plaintiff, who was suing for malicious prosecution, could establish by “clear and convincing” evidence that the conduct was tortious or otherwise wrongful.

Another case, decided a week later, Nygaard v. Walsh, No. A14-0011, 2014 WL 7236977 (Minn. Ct. App. Dec. 22, 2014) (unpublished), also dealt a setback to the claimant, an Orono man who sued his neighbors for writing a letter to the local police expressing “safety” concerns because of the “belligerent” and “combative” behavior of the man.  His lawsuit for defamation and negligence was dismissed by the Hennepin County District Court, which the appellate court affirmed.  It ruled that the letter to the police authorities was covered by the statute and the claimant failed to meet the “clear and convincing” standard for showing that there was defamation or negligence, which warranted dismissal of the litigation. 

The third case, a week later, involved a long-running feud between public officials on the Middle Snake Tamarac River Watershed District in northern Minnesota.  In Zutz v. Nelson,  No. A14-0573, 2014 WL 7344058 (Minn. Ct. App. December 29, 2014) (unpublished), the Court ruled that the two defendant members of the Watershed District governing board were immune from suit for defamation and that the claimants failed to show clearly and convincingly that the disparaging statements they made about their two colleagues who brought the suit were defamatory.

These cases offer some suggestions for parties embroiled in SLAPP cases.

  • First, the claimant should be aware that, if the conduct at issue in the case, involves contacts with government officials, the lawsuit may breed a SLAPP defense;
  • The party against whom a claim is made should be prepared to raise any applicable SLAPP suit defenses at the outset of litigation in order to have this issue resolved sooner, rather than dragged through a lengthy and costly process;
  • The party asserting the immunity defense under the statute, must meet a “minimal threshold” that the underlying action was aimed at procuring favorable governmental action, which usually can be met without extensive inquiry;
  • If that burden is not achieved, the lawsuit proceeds;
  • However, if the “minimal” showing is made, the claimant then has the burden of showing by “clear and convincing” evidence that there was defamation or other tortuous behavior, or violation of constitutional rights, which may be a difficult hurdle to overcome.

SLAPP suit litigation is often volatile and sometimes complex. These suggestions provide guidelines for litigants and lawyers in addressing issues arising under the ever-increasing amount of litigation arising under the anti-SLAPP statute.