Leiendecker v. Asian Women United of Minn., A16-0360

895 N.W.2d 623

Lawrence LEIENDECKER, et al., Respondents,

v.ASIAN WOMEN UNITED OF MINNESOTA, et al., Appellants,Greenstein, Mabley & Wall, LLC, et al., Appellants.

A16-0360

Supreme Court of Minnesota.

Filed: May 24, 2017

Eric J. Magnuson, Robins Kaplan LLP, Minneapolis, Minnesota; Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota; Robert A. Hill, Robert Hill Law, Ltd., Maplewood, Minnesota; and Thomas B. Gunther, Gunther Law Offices, LLC, Minneapolis, Minnesota, for respondents.

Kay Nord Hunt, Phillip A. Cole, Bryan R. Feldhaus, Lommen Abdo, P.A., Minneapolis, Minnesota, for appellants Asian Women United of Minnesota, et al.

Thomas P. Kane, Armeen F. Mistry, Cozen O'Connor, Minneapolis, Minnesota, for appellants Greenstein, Mabley & Wall, LLC, et al.

OPINION

MCKEIG, Justice.

Sinuon and Lawrence Leiendecker sued the nonprofit organization Asian Women United of Minnesota (AWUM), alleging that two of AWUM's previous lawsuits against them constituted malicious prosecution. AWUM sought immunity under Minnesota's anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which permits parties to move for dismissal of a lawsuit on the ground that a claim against them relates to an act involving public participation. Minn. Stat. §§ 554.01 -.06 (2016). After we clarified the law's procedure, the district court ruled that the section of the law that governs motions "to dispose of a judicial claim," Minn. Stat. § 554.02, subdivision 1, violated the Leiendeckers' right to a jury trial by requiring the trial judge to find facts. Id ., subd. 2(3) (requiring "the court" to make findings). AWUM appealed to the court of appeals, then petitioned this court for accelerated review, which we granted. For the reasons that follow, we affirm.

Our previous case involving these parties chronicled the history of this litigation.

The parties in this case have a long-running feud that has resulted in multiple lawsuits. AWUM is a nonprofit organization that operates a shelter for battered women and provides other services for women and children. Sinuon Leiendecker was AWUM's executive director from 1999 to 2004. Lawrence Leiendecker is an attorney who provided pro bono legal services to AWUM.

The relationship between AWUM and the Leiendeckers began to deteriorate in 2003. In late 2003, the Leiendeckers attempted to oust AWUM's board of directors by forming a new board, terminating the old board, and filing a declaratory-judgment action to have the new board declared legitimate. In response, AWUM's old board alleged that it had previously fired Sinuon from her position as AWUM's executive director and that she had received wages and benefits to which she was not entitled.

In that lawsuit—the first between the parties—the district court rejected the Leiendeckers' efforts to install the new board of directors. The district court also rejected the old board's allegation that it had fired Sinuon, but permitted the old board to proceed on its claims that Sinuon had received wages and benefits to which she was not entitled. The old board then fired Sinuon and sought, unsuccessfully, to add a legal-malpractice claim against Lawrence to the action. After AWUM declined to tender advance indemnification to Sinuon, the district court dismissed the case and awarded approximately $25,000 to Sinuon as reimbursement of her costs and attorney fees.

In the parties' second lawsuit, Sinuon sued AWUM in August 2005 for, among other things, wrongful termination. The district court dismissed the action, but the court of appeals reversed. Leiendecker v. Asian Women United of Minn. , 731 N.W.2d 836, 838 (Minn. App. 2007). The parties settled the second lawsuit in 2008.

In the parties' third lawsuit, AWUM sued Lawrence in February 2007 for legal malpractice and related claims. Lawrence counterclaimed for indemnification. The district court eventually dismissed AWUM's complaint at AWUM's request, granted summary judgment to Lawrence on his counterclaim for indemnification, and entered judgment for over $41,000 in favor of Lawrence.

In the parties' fourth lawsuit, AWUM sued Sinuon in February 2008 for conversion and related claims, alleging that Sinuon had received wages and other payments to which she was not entitled while she was AWUM's executive director. Sinuon again moved for advance indemnification. The district court initially denied Sinuon's motion, but the court of appeals reversed and remanded. Asian Women United of Minn. v. Leiendecker , 789 N.W.2d 688, 689 (Minn. App. 2010). On remand, the district court concluded that Sinuon was entitled to indemnification, and then dismissed the lawsuit when AWUM declined to tender advance indemnification to Sinuon. The district court also entered judgment in favor of Sinuon to reimburse her for the costs and attorney fees that she had incurred prior to the dismissal.

In this lawsuit, now the fifth between the parties, the Leiendeckers seek to recover under a host of legal theories for the injuries allegedly inflicted by AWUM and the other defendants through the four previous lawsuits. Their complaint spans 116 pages, includes a total of 11 separately numbered claims, and names 18 defendants (plus some John Does and John Doe entities), including: AWUM; a current and a former executive director of AWUM; certain current and former AWUM board members; and individuals and companies that have provided professional services or expert testimony for AWUM....

In the district court, AWUM moved for dismissal on a number of grounds, but the only ground relevant to this appeal arises out of Minnesota's anti-SLAPP statutes, Minn. Stat. §§ 554.01 -.05 (2012). The anti-SLAPP statutes are directed at "SLAPP suits"—"Strategic Lawsuits Against Public Participation"—which are lawsuits that target the exercise of "[l]awful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action." Minn. Stat. § 554.03 ; see alsoMiddle-Snake-Tamarac Rivers Watershed Dist. v. Stengrim , 784 N.W.2d 834, 839 (Minn. 2010)....

The district court dismissed most of the Leiendeckers' claims, but denied AWUM's anti-SLAPP motion with respect to one: a claim for malicious prosecution.

Leiendecker v. Asian Women United of Minn. , 848 N.W.2d 224, 226-28 (Minn. 2014) (footnotes omitted).

A party moving to dismiss a claim based on the anti-SLAPP law must "make a threshold showing that the underlying ‘claim materially relates to an act of the moving party that involves public participation.’ " Stengrim , 784 N.W.2d at 841 (quoting Minn. Stat. § 554.02, subd. 1 ). After the moving party makes this threshold showing, the burden shifts to the responding party. Clauses 2 and 3 of Minnesota Statutes § 554.02, subdivision 2, explain the responding party's burden:

(2) the responding party has the burden of proof, of going forward with the evidence, and of persuasion on the motion;

(3) the court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability under section 554.03....

In the previous case involving these parties, we announced that the plain language of clause 3 requires the responding party to provide evidence—not mere allegations—to show by clear and convincing evidence that the moving party's acts are not immune. Leiendecker , 848 N.W.2d at 232-33. As we said then, under subdivision 2, "the responding party bears the burden to persuade the trier of fact—here, the district court—of the truth of a proposition." 848 N.W.2d at 231.

On remand, the court of appeals determined that AWUM had made a threshold showing that the lawsuit filed by the Leiendeckers materially related to an act by AWUM involving public participation. Leiendecker v. Asian Women United of Minn. , Nos. A12-1978, A12-2015, 2014 WL 7011061, at *3-4 (Minn. App. Dec. 15, 2014), rev. denied (Minn. Feb. 25, 2015). The court of appeals then remanded the case to the district court with instructions to apply the standard we articulated in Leiendecker to the Leiendeckers' response. 2014 WL 7011061, at *4.

At the district court, AWUM renewed its motion to dismiss under the anti-SLAPP law. In response, the Leiendeckers moved for an order declaring the anti-SLAPP law unconstitutional.¹ The district court found that the Leiendeckers fell short of proving by clear and convincing evidence that AWUM's acts were not immunized from liability. But the court concluded that Minn. Stat. § 554.02 violated the Leiendeckers' constitutional right to a jury trial. Minn. Const. art. I, § 4. As a result, the district court denied AWUM's motion to dismiss.

AWUM appealed and sought accelerated review. We granted AWUM's petition for accelerated review.² AWUM argues that (1) the Leiendeckers waived their claim that the anti-SLAPP law is unconstitutional and (2) the law is constitutional in any event. Because we conclude that the Leiendeckers did not waive their constitutional claim and Minn. Stat. § 554.02 is unconstitutional as applied to the Leiendeckers' claim at law alleging a tort, we affirm.

I.

Before proceeding to the merits of the constitutional argument, we must resolve two preliminary issues: whether the Leiendeckers waived their argument that the law is unconstitutional and whether the district court violated the court of appeals' remand instructions.

A.

AWUM contends that the Leiendeckers waived their right to assert that the anti-SLAPP law is unconstitutional by failing to make that argument at any of three junctures: (1) in their petition for review of the court of appeals' 2013 decision, (2) in their petition for rehearing following our 2014 decision, and (3) in their second petition for review following the court of appeals' 2014 decision on remand. We conclude that the Leiendeckers' constitutional challenge was not ripe until the case was remanded to the district court and, therefore, could not have been waived at an earlier...