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.”
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.