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Is Minnesota’s anti-SLAPP law constitutional?

For the past decade, a Twin Cities attorney and his wife have been embroiled in an acrimonious legal fight with the nonprofit shelter that she led before being ousted by its board of directors.

In the course of five lawsuits and numerous appeals in the litigation with the Asian Women United of Minnesota, Lawrence and Sinuon Leiendecker have been both plaintiff and defendant and the two sides have exchanged myriad allegations of wrongdoing that range from theft to legal malpractice to defamation to abuse of process.

On Tuesday, Nov. 1, the last of the lawsuits — a claim for malicious prosecution brought by the Leiendeckers — heads to the Minnesota Supreme Court, where the justices will wade into the messy but familiar saga for the second time in a little more than two years.

With 18 named defendants (including a lawyer who once represented AWUM and a sitting Hennepin County judge who serves on its board), the Leiendeckers’ 116-page complaint seeks damages for a host of injuries they allegedly suffered as a consequence of two of the unsuccessful lawsuits AWUM brought against them.

In those claims, AWUM said that Larry Leiendecker committed legal malpractice when he served as AWUM’s pro bono counsel and that Sinuon — AWUM’s executive director from 1999 to 2004 — collected wages and benefits to which she was not entitled.

The issue on appeal in the Leiendecker’s current suit against AWUM is a relatively narrow one: Is a key provision of Minnesota’s anti-SLAPP law unconstitutional?

On the books since 1994, the law is designed to bolster citizen speech rights by making it easier for defendants to beat back meritless lawsuits known as SLAPPs  (which stands for “strategic lawsuits against public participation”) without spending a fortune on legal fees.

Under the law’s unusual procedural mechanisms, defendants can freeze discovery at the outset of the litigation by asserting SLAPP immunity, which then forces plaintiffs to demonstrate to a judge, by a clear and convincing standard, that they are still likely to prevail on the merits.

Last February, following a daylong hearing on AWUM’s motion to dismiss, Ramsey County District Court Judge Shawn Bartsh concluded that the Leiendeckers failed to satisfy that statutory burden.

But Bartsh declined to dismiss the Leiendeckers’ suit, ruling instead that the statute is unconstitutional as applied because it puts the bench in the role of fact finder and, consequently, violates the Leindecker’s constitutional right to a jury trial.

In 2015, the Washington Supreme Court invoked similar reasoning in striking down that state’s anti-SLAPP law.

Lawrence Leiendecker declined to be interviewed for this story but, via email, offered a pithy comment that encapsulated his view of the basic problem with the anti-SLAPP law: “The statute forsakes our founding principles in the name of preserving them.”

“I’d be shocked if our Supreme Court didn’t follow the Washington court in terms of the jury trial right violation,” said Robert Hill, one of the Leiendeckers’ lawyers. “We’ve got 30 to 40 different statutory and common law immunities and this is the only one where the judge is required to become the fact finder.”

But Hill hopes the court will declare that provision of the law unconstitutional on its face, saying the court needs to give “guidance” to the Legislature, as well as the litigants and the bar, to protect the rules of civil procedure.

To that end, Hill recruited Mahesha Subbaraman, a highly regarded appellate litigator with a solo practice in Minneapolis, to draft the brief. He also persuaded his old friend Eric Magnuson, the former chief justice of the Minnesota Supreme Court and now a partner at Robins Kaplan, to argue the case.

“Whenever I’m in a knife fight, I like to bring a Howitzer,” Hill quipped.

Magnuson (who didn’t want to comment on the case prior to the oral argument) isn’t the only prominent member of the Minnesota legal community to be drawn into the long-running legal fight.

Hennepin County District Court Judge Regina Chu, a board member at AWUM, is one of the named defendants, while Stephen L. Smith, now a District Court judge in Ramsey County, served as Sinuon Leiendecker’s attorney in an earlier defamation claim against AWUM.

Meanwhile, Kay Nord Hunt, a veteran appellate specialist from the Minneapolis firm of Lommen Abdo, is scheduled to handle the oral arguments for AWUM and the co-defendants in the case. Hunt did not respond to a request for comment prior to deadline.

In her brief, however, Hunt argues that Bartsh got it wrong when she held the anti-SLAPP statute was unconstitutional and, further, says that the Leiendeckers waived their right to a constitutional challenge by not raising it earlier.

Even if that’s not the case, Hunt says that Sinuon Leiendecker is barred from asserting a malicious prosecution claim by the terms of an earlier settlement with AWUM that mandates arbitration, not a jury trial.

If the Supreme Court affirms Bartsh, the Leiendeckers lawsuit against AWUM could drag on for years — a challenge for both parties given that the many of the events in question occurred 13 years ago.

“In the end, we’re going to win this but justice delayed is justice denied,” opined Hill, who says that the protracted legal fight has taken a toll on his clients.

“If they were cynical about our system, they could have rolled with the punches and gotten on with life. The problem is, these people believed in our system,” he said.

The long-running legal fight evidently began with a struggle for control of AWUM, which provides culturally specific services to victims of domestic violence and operates a shelter in Minneapolis.

Around 2003, as the Leiendeckers’ relationship with AWUM’s board of directors soured, the couple sought to form a new board on the grounds that the old board violated the organization’s bylaws. That prompted a legal challenge from the old board, which was restored to power by Ramsey County District Court Judge Gary Bastian.

The old board then sacked Sinuon Leiendecker and sued her for past wages and benefits.

After that suit was dismissed, Sinuon Leiendecker sued AWUM for wrongful termination and defamation. Following a dismissal at the District Court and a reversal at the Court of Appeals, that case was settled in 2008 for about $150,000.

While that claim was still being litigated, AWUM brought a legal malpractice claim against Lawrence Leiendecker, who counterclaimed for indemnification. AWUM ultimately dropped the suit and Leiendecker was awarded about $41,000 on summary judgment.

In the fourth lawsuit between the parties, AWUM sued Sinuon Leiendecker for conversion, which resulted in another trip to the Court of Appeals on the question of whether she was entitled to advanced indemnification. After a reversal and remand, AWUM dropped the suit and Sinuon was awarded costs and attorney fees.

Finally, in 2012, the Leiendeckers sued AWUM and its former counsel, Frank Mabley, asserting claims for, among other things, malicious prosecution, abuse of process, and intentional infliction of emotion distress.

AWUM moved for dismissal under the anti-SLAPP law and, in 2014, the Minnesota Supreme Court ruled that the Leiendeckers failed to meet their burden of production of evidence that their claims materially related to acts involving public participation under the anti-SLAPP law and remanded to the Court of Appeals.

The Court of Appeals then said that AWUM had made such a threshold showing and affirmed that portion of the District Court’s order.  It then remanded for the District Court to determine whether the Leiendeckers met their burden to show by clear-and-convincing evidence that the acts of AWUM were not immune under the statute. That resulted in Bartsh’s ruling that the law as applied violated Art. 1, sec. 4 of the Minnesota Constitution.

Correction: A previous version of this story misspelled the name of Ramsey County District Court Judge Shawn Bartsh and misidentified the county in which she serves.

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