The three-judge appeals panel declined to grant discretionary review to overturn a ruling that held that Lesch’s scalding written comments about Olson were not mere opinion or hyperbole protected by the First Amendment.
The court has not ruled on a direct appeal of Ramsey County District Court Judge Frank Magill’s Sept. 26 finding that the Minnesota Constitution’s Speech or Debate Clause does not shield Lesch from litigation. That issue remains active and pending.
In an opinion written by Chief Judge Edward Cleary, the Court of Appeals said that discretionary review of the opinion/First Amendment issue is unwarranted at this time. “[W]hen appellate jurisdiction arises under the collateral-order doctrine, the resulting interlocutory appeal should be limited to the rulings immediately appealable and other issues ‘inextricably intertwine’ with the appealable rulings,” the court said.
The court said that Lesch could defend the action and appeal from a final judgment. “Although petitioner asserts that it would be more convenient for the court to review the additional issue at this time, that assertion is insufficient to overcome the constraints of the collateral-order doctrine and the general policy against piecemeal review,” Cleary said.
“While we are disappointed that the court has declined to review the opinion part of this case, [the lawsuit] still remains an unresolved issue,” said Marshall Tanick, Lesch’s attorney. “We are pleased to know that the appeal on the immunity issue is going forward now.”
A District Court jury trial scheduled for March, in the middle of the next legislative session, almost certainly will be delayed as the immunity question moves forward, both litigants’ attorneys indicate.
In her Feb. 16 complaint, Olson accuses Lesch of defaming her in a private, Jan. 3 letter to new St. Paul Mayor Melvin Carter. Sent on Lesch’s House of Representatives letterhead, it questions the wisdom of Olson’s selection as city attorney.
Lesch and Olson served together in the Minnesota National Guard, but it’s not clear how well they knew each other there. Olson was the Guard’s general counsel before her appointment as city attorney, but Lesch — a Guard infantry officer — was not part of her team.
Lesch also previously worked as a lawyer in the St. Paul city attorney’s office, but that was well before Olson’s appointment. He now is in private practice while serving as a legislator.
His letter to Carter questions her fitness to serve and registers “grave concerns.”
“My experience with Ms. Olson in the Minnesota National Guard revealed her to be a prosecutor who would sacrifice justice in pursuit of a political win — even going so far as to commit misconduct to do so,” the letter states.
It does not describe Lesch’s experience with Olson in the Guard. But it does say that his personal observations were consistent with a National Guard investigation of Olson for, as Lesch described it, “operating a ‘toxic work environment.’”
Six weeks after the letter was sent, Olson sued, charging defamation per se and seeking damages in excess of $50,000, court costs and any other award the court deems just. The private action is not being financed by the city, said Lisa Lamm Bachman, Olson’s attorney.
Olson’s complaint charges that Lesch’s comments were “libelous, slanderous and defamatory on their face,” and that they hurt her professional reputation. The allegations were made, the complaint says, “with reckless disregard of their truth or falsity and/or with malice.”
The complaint’s opening paragraphs assert that the suit “involves issues of ongoing gender discrimination that permeate and disrupt the progress and promotion of women to professional leadership positions.” Yet gender discrimination is not among the allegations against Lesch.
Tanick said that Olson’s case seems to include a confusing mixture of grievances that flow in various directions.
“When I first saw the complaint, I thought it was a gender discrimination case and all of a sudden it takes a left turn or a right turn, or some kind of turn,” Tanick said. “It’s an extraordinarily unusual case.”
Lamm Bachman declined to comment on the relevance of gender discrimination in that suit. But a nexus will be demonstrated at trial, she said. “We are confident that they intertwine, that’s all I’ll say,” Lamm Bachman said. “The facts will bear it out.”
Olson declined comment when reached by email Thursday, deferring to her attorney. Lesch mostly did the same when reached Wednesday. But he offered one short statement: “We are looking forward to vigorous discovery.”
For his part, Tanick said he hopes discovery proves unnecessary after the appeals court dismisses the case with a finding that Lesch’s comments were protected under the Speech or Debate Clause.
A ruling on that matter is not expected before April, both attorneys said.
‘Small group of males’
In her complaint, Olson — a Bronze Star recipient — describes rising through the ranks of the male-dominated Minnesota National Guard to become its first female general counsel. Despite that — or perhaps because of that, the complaint says — Olson was subjected to harassment by “a small group of males” in the Guard.
“On information and belief, the man who organized the group was the same man who had sexually harassed [Olson] years before,” the complaint states. “Another one of the men in the group previously competed with Ms. Olson for promotion to the position of general counsel.”
Still others were dissatisfied with her personnel and discipline decisions, the complaint says. It does not identify Lesch as being among those males.
The men allegedly harassed Olson and launched a rumor and disinformation campaign against her, which culminated in two anonymous complaints and investigations. One involved Olson’s supervision of male subordinates; the other accused her of failing to obey physical training test regulations.
The guard’s inspector general investigated and found both charges unsubstantiated, the complaint says.
After laying out that scenario, the complaint turns to Lesch’s letter and never again addresses the gender harassment issue.
In his District Court motion to dismiss, Lesch asked Magill to find that Olson’s complaint lacks specificity and that his statements were a combination of constitutionally protected opinions and statements of fact. He also asked Magill to find him immune to litigation under the Speech or Debate Clause.
But in his Sept. 26 opinion, Magill shot down all those arguments. Olson’s allegations were specific enough to put Lesch on notice, he ruled, and any findings of fact must be left to a jury, not a judge.
Magill conceded that the letter’s contention that Olson “would sacrifice justice in pursuit of a political win” might be construed as pure, if harsh, opinion. But his immediate follow-up statement, that she would go “so far as to commit misconduct,” constitutes an objectively verifiable claim, not conjecture.
That makes the statement “reasonably capable of conveying a defamatory meaning,” Magill ruled, and therefore actionable.
Magill further ruled that Lesch’s letter was not a legislative communication — despite mentioning the city’s potential lobbying work at the Capitol — so it is not protected by the Speech or Debate Clause. Magill then denied Lesch’s motion to dismiss the case.
Both sides expressed confidence in their case. “We hope that we will get clarification of these issues from the appellate court soon,” Tanick said.
“We feel very confident in the facts and confident in the position that we have taken so far,” Lamm Bachman said. “We believe this is defamation and that no legislative immunity applies just because he put it on his state legislator letterhead.”
Lesch was named chair of newly christened Judiciary Finance & Civil Law Division on Nov. 21 — one day after the Court of Appeals denied his appeal.