Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.


More than 30 states, including Minnesota, recognize the right of a defendant to raise as a defense that its underlying behavior was aimed at securing favorable action by a public body.  Designed to deter SLAPP (strategic litigation against public participation) suits, the Minnesota law that immunizes conduct directed to obtaining favorable government action (Minn. Stat. §554.03) establishes a number of obstacles for claimants suing for defamation or other torts as well as constitutional violations.

A trio of recent rulings of the Minnesota Court of Appeals reflects the hurdles faced by claimants.  In Leiendecker v. Asian Women United of Minnesota, 2014 WL 7011061 (Minn. App. 12/15/2014) (unpublished), the appellate court held that a nonprofit organization, sued for malicious prosecution after it filed lawsuits for legal malpractice and conversion against its former director and her attorney spouse, met the “minimal threshold” that its conduct was statutorily protected because the lawsuits were aimed at procuring favorable government action” via the “judicial branch.”  The case was sent back to the district court to determine if the plaintiff can show by “clear and convincing evidence” tortious or unconstitutional behavior by the defendant.

In Nygard v. Walsh, 2014 WL 7236977 (Minn. App. 12/22/2014) (unpublished), the court dismissed a defamation and negligence lawsuit brought by a “belligerent” neighbor who sued nearby residents for writing a letter to the local police department, expressing “safety concerns,” and asking for action to be taken against the “combative” individual. The letter was statutorily protected, and the claimant failed to carry the “clear and convincing” burden of showing that the letter was defamatory or constituted negligence.

To complete the trifecta, in Zutz v. Nelson, 2014 WL 7344058 (Minn. App. 12/29/2014) (unpublished), the court threw out a defamation and negligence suit brought by two Watershed District managers in northwestern Minnesota against two of their colleagues, and the case was remanded for determination of possible attorney’s fees for the immunized defendants.

Litigants and their lawyers asserting torts or even constitutional claims against parties who have sought to invoke some type of government action should be aware that they are likely to confront anti-SLAPP suit immunity defenses at the outset of litigation.  This may impede the pursuit of the lawsuit because discovery can be stayed while adjudicating the threshold issues of statutory immunity and overcoming that immunity.  Claimants also face the heavy burden of proving a negative, that the defendant’s conduct is not statutorily protected, which must be done by “clear and convincing” evidence of tortious or constitutional wrongdoing.

Parties against whom such suits are brought and their advocates should promptly raise anti-SLAPP suit defenses, if warranted, at the beginning of litigation and then try to establish that the behavior triggering the conduct falls within the statutory protection for “public participation.”

Marshall H. Tanick

Hellmuth & Johnson, PLLC


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