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Anti-SLAPP law perishes at Supreme Court

Justice Anne K. McKeig

Justice Anne K. McKeig

Minnesota’s anti-SLAPP law, which was enacted with the lofty goal of protecting free speech on issues of public concern by making it easier and cheaper for defendants to beat back meritless lawsuits, died on Wednesday.

It was 23 years old.

According to the Minnesota Supreme Court, the statute suffered from a constitutional infirmity that violated plaintiffs’ protected right to a jury trial. Its death was reported in Leiendecker, et al, v. Asian Women United of Minnesota, et al., handed down on May 24 by the Supreme Court. The opinion was written by Justice Anne K. McKeig, with Chief Justice Lorie Gildea dissenting.

News of its demise was met with a collective shrug from practitioners, who said the law rarely delivered on its promise: creating a remedy to so-called SLAPPs, or “strategic lawsuits against public participation.”

Under the law’s unusual procedural mechanisms, a defendant could freeze discovery at the outset of a lawsuit by invoking the statute. That then triggered a requirement that the plaintiff prove to the judge, by clear and convincing evidence, that the lawsuit was not a SLAPP.

McKeig wrote that the provision is unconstitutional because it forces judges to “usurp the role of the jury by making pretrial factual findings that can, depending on the findings, result in the complete dismissal of the underlying action.”

Robert Hill

Robert Hill

The statute is survived by the lawsuit that spurred the constitutional challenge, a malicious prosecution claim brought by Twin Cities attorney Larry Leiendecker and his wife, Sinuon Leiendecker.

The Leiendeckers’ suit arose from a long-running and highly contentious legal fight with Asian Women United of Minnesota, a nonprofit organization that Sinuon once led, and AWUM’s legal counsel, Greenstein, Mabley & Wall. AWUM previously brought two unsuccessful lawsuits against the couple alleging claims of conversion and legal malpractice.

With Supreme Court’s ruling, the Leiendeckers’ suit is now remanded to Ramsey County District Court Judge Shawn Bartsch. In an earlier ruling, affirmed by the high court, Bartsch also deemed the anti-SLAPP law unconstitutional.

The high court’s ruling did not come as a surprise, said Robert Hill, one of the Leiendeckers attorneys.

“Once the judge is forced to become a fact finder on a motion, the toothpaste is out of the tube,” said Hill. “What the Supreme Court did today is to reaffirm that our rules of civil procedure are the only mechanism that ensures due process and fundamental fairness. And if you deviate from that, you do it at your own peril.”

Hill said the decision comes as a relief to the Leiendeckers — and not only because they can now pursue their claim. Had the court sided with AWUM, the anti-SLAPP statute’s attorney fee provision would have kicked in. That could have put the Leiendeckers on the hook for as much as half a million dollars or more, he said.

Still, Hill added, the delays caused by the fight over the statute’s constitutionality have been frustrating.

“Justice delayed is justice denied. Claims that should have been adjudicated years ago have been put on hold because of this statute,” Hill said. “The insurance defense industry has used it not as a shield to protect the innocent but as a sword.”

While the Supreme Court ruled that the statute is unconstitutional as applied to the facts of the Leiendeckers’ case, attorneys for both sides said the court’s decision is a fatal blow to the law.

“The [anti-SLAPP] defense is gone forever. There is no longer any defense arising out of one’s participation in a public issue,” said Phillip Cole, an attorney for AWUM.

Cole, a partner at the Lommen Abdo firm, called the ruling a “disappointment” for his clients. But he said its larger ramifications are limited because the statute is simply not invoked very often.

Eric Magnuson, a partner at the Robins Kaplan firm who argued the Leiendeckers case at the Supreme Court, agreed with that observation.

Nonetheless, Magnuson cast the court’s decision as an important victory for constitutional principles.

“It’s a strong vindication of the right to a jury trial, which is one of our most precious and fundamental rights,” said Magnuson, who worked on the case on a pro bono basis.

Mark Anfinson, a solo practitioner from Minneapolis who frequently represents media clients in defamation lawsuits, said the loss of the anti-SLAPP law is “not a big deal” because, from a defense perspective, it wasn’t a very good tool.

“I’ve used it to threaten people who said they were going to sue my clients: You better watch out, Jack, there’s this statute you should be aware of,” said Anfinson. “But when push came to shove and litigation occurred, it hardly ever worked. Trial judges saw the flaw in it and said, ‘I can’t make this kind of factual decision. That’s not how the law works.’”

So how did the statute manage to survive for more than two decades?

“It’s been a sitting duck for a long time but of a species that most people weren’t all that interested in hunting,” ventured Anfinson.

For his part, Magnuson offered a slightly different explanation.

“No one had been able to tee up the precise constitutional challenge the way we did,” he said.

The majority’s opinion in the case elicited a dissent from Chief Justice Lorie Gildea, who wrote that she would have resolved the case on “more narrow grounds” and dismissed the Leiendeckers’ malicious prosecution claim as a matter of law.

Gildea also warned that the majority’s decision “may undermine the summary judgment remedy.”

“The majority does not contend that rulings made on summary judgment violate the jury trial right,” Gildea wrote. “But courts are likely to see such arguments in the future based on the rule the majority announces today.”

Anfinson said he was both intrigued and concerned by Gildea’s suggestion that the court’s holding could have broader implications on summary judgment practice.

“Given the enormous amount of litigation in the modern trial courts, it would be a catastrophe for processing cases if she’s right,” Anfinson said.

One comment

  1. I’ve lived the consumer side of this SLAPP topic, and I can think of no one better justification for a strong SLAPP law than lawyer Marshall Tanick’s comments to the Star Tribune. Marshall Tanick was quoted in a Star Tribune newspaper article August 27, 2001. It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert . . . “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements,” he said . . .

    I suspect that if Minnesota had a stronger SLAPP statute or a federal SLAPP statute more readily known by lawyers in 2010, I might not have been sued from 2010 through 2013 for criticizing the bedside manner of a doctor.

    A good SLAPP statute does not prevent an insulted doctor or plumber from getting his jury trial, but it does make his suit get scrutinized for validity more quickly. During four years of depositions, discovery, hearings, and motions, I never once spoke to a judge.

    My four years of association with the defamation process was a distressing war of financial attrition for my family. The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

    After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Not only was I sued, but I was denigrated as a liar in a demand letter to my insurance provider of 25 years, in spite of the fact that I didn’t carry liability insurance.

    Since May of 2010, postings on the Internet by others included newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

    I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I am upset,” “I think the doctor did not treat my father well,” “I think he was insensitive,” “he did not spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. I heard opposing counsel tell the Minnesota Supreme Court that if I had stuck to such generalities, they’d not have been considered defamatory. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort – they can “incur huge legal expenses that will deter them and others from making such statements.”

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