This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
County of Cottonwood,
Minnesota, et al.,
Scott T. Anderson,
Filed August 30, 2005
Affirmed in part, reversed in part, and
County District Court
2005 Aquila Avenue North,
Golden Valley, MN 55427
T. Benkstein, Felhaber, Larson,
Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondents County of Cottonwood,
D. Belinske, Bassford Remele, P.A.,
33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondents Anderson, et al.)
Iverson, Iverson Reuvers,
9321 Ensign Avenue South,
Bloomington, MN 55438
(for respondent Pierce)
Considered and decided by Toussaint, Chief
Judge, and Forsberg, Judge.
P U B L I S H E D O P I N I O N
David Honan brought claims alleging violation of the Minnesota Constitution,
defamation, and violations of the Minnesota Government Data Practices Act and
Open Meeting Law against the following respondents: (1) the County of Cottonwood and five of its
current and former commissioners (the county); (2) Brian T. Pierce, a
former assistant county attorney (Pierce); and (3) Scott T. Anderson, who
served as legal counsel for the county board, and his law firm, Ratwik, Roszak
& Maloney, P.A. (Anderson). Honan, who served a term as Cottonwood County Attorney
after he defeated the incumbent in a write-in election, claims that respondents
acted wrongfully during an investigation into a discrimination complaint
brought by one of his former employees and in publicizing the results of that
investigation during a county board meeting.
district court granted judgment on the pleadings and dismissed all claims
against Pierce and Anderson,
and most of the claims against the county.
The only claims that remain against the county allege breach of contract
and violation of the data practices act and open meeting law (Counts V &
VI). Because the district court did not
err in granting judgment on the pleadings with respect to Counts I (violation of
state constitution), III (defamation against Pierce), V (violation of open
meeting law against Anderson),
and VI (violation of data practices act against Anderson), we
affirm dismissal of those claims. But because
the district court erred in granting judgment on the pleadings with respect to
Count IV (defamation against the county and Anderson), we reverse the dismissal
of that claim and remand for further proceedings.
In 1997, Honan was hired
as an Assistant Cottonwood County Attorney.
He was discharged from his position in September 1998. Honan claims
that he was discharged for challenging the actions of a county agency and its
director, who was a “close political ally” of the county board. In October 1998, just weeks before the
general election, Honan decided to run as a
write-in candidate against the incumbent county attorney, who was strongly
supported by the county board and its commissioners. In November 1998, the voters of the county
elected Honan as their county attorney.
Honan alleges that immediately after the election,
“reached an agreement” with the county board and was “the architect of various
schemes designed to ruin Honan and/or force
him to resign.” In particular, Honan alleges that the board retaliated against him by
reducing his staff and cutting his salary.
In late 1999, after one of Honan’s
employees filed a complaint against him alleging marital discrimination, the
board hired attorney Michelle
Soldo to conduct an
investigation. Honan alleges that Soldo
“strategized” with Anderson
and that the county prevented him from gaining access to information collected
in connection with Soldo’s investigation.
Respondent Pierce, who was hired by Honan and was an
assistant county attorney at the time of Soldo’s investigation, was initially
one of Honan’s supporters. At some point, though, Pierce
began to voice concerns about Honan. In January 2000, Pierce
resigned. According to Honan, Pierce agreed to “align” himself with the board against Honan. Pierce filed a complaint against
Honan claiming that Honan had “intimidated and
retaliated against [Pierce] for cooperating with Soldo’s investigation.” Honan claims that Pierce’s complaint “was
used as a pretext for yet another ‘investigation’ of Honan.”
Honan claims that the
county “repeatedly refused to allow [him] access to the complaints filed
against him[,] to statements obtained from ‘witnesses,’ or to the final
investigative reports.” Honan alleges
that the county and Anderson
“publicly referred to the contents and findings of the Soldo report to attack”
him and that they were “bent on selling the public on their knowingly false and
self-serving version of the facts.”
On January 31, 2000, the county board held a special
meeting, as Honan alleges, to “discuss and publicize the Soldo report.”
Honan claims that the meeting was
“unauthorized” and that he was not given an opportunity to be heard; he
acknowledges, however, that he sought, but was denied, a temporary restraining
order to prevent the meeting from taking place.
More than 150 interested citizens attended the meeting, which was also
broadcast live on a local radio station.
At the meeting, Anderson presented the
recommendations made by Soldo in her report.
stated that Soldo’s findings did not support the claim that Honan had violated
the county’s policies on harassment, but that Honan
had violated the county’s personnel policy by disciplining an employee twice
for the same offense. Anderson also remarked that the findings
regarding conflict of interest and obstruction of the investigative process
indicated that Honan may have violated the
rules of professional conduct, but that the board was not authorized to take
any disciplinary action against him. Anderson
recommended that the county board forward the information to the Lawyers
Professional Responsibility Board (LPRB).
According to Honan, the county board passed a resolution
that “[a]cknowledged its lack of authority to discipline a peer elected
official,” but “went on to ‘discipline’ and further defame” him by “repeatedly
reprimanding and lecturing him, and finally authorizing” the board to file a
complaint with the LPRB. Honan further claims that the resolution “purport[ed] to establish a ‘Human Rights File,’ which was to
be kept ‘confidential and inaccessible to the subject(s) of the data.’” The board and Anderson
thereafter filed separate complaints against Honan
with the LPRB, which were ultimately dismissed.
Honan brought this
complaint against the county, Anderson, and Pierce in April 2003, after dismissal of his complaint in
federal district court alleging federal and state law claims. See Honan
v. County of Cottonwood,
2003 WL 1572138 (D. Minn.
Mar. 20, 2003). This appeal followed the
district court’s grant of judgment on the pleadings and dismissal of all of Honan’s claims against Pierce and Anderson,
and most of his claims against the county and its commissioners.
D E C I S I O N
Because this is an appeal from
judgment on the pleadings, we focus on the allegations contained in the
parties’ pleadings without regard to extraneous matters. See Minn. R. Civ. P.
12.03. We may also consider documents
and statements that are incorporated by reference into the pleadings. Marchant
Inv. & Mgmt. Co. v. St.
Anthony W. Neighborhood Org., Inc.,
694 N.W.2d 92, 95 (Minn.
A motion for judgment on the
pleadings should only be granted if the pleadings create no fact issues; the
court must give all benefit of doubt to the nonmoving party. Stephenson v.
Plastics Corp. of Am., 276 Minn. 400, 402,
150 N.W.2d 668, 671 (1967); Grier v. Estate of Grier, 252 Minn.
143, 145, 89 N.W.2d 398, 401 (1958). This type of a motion is generally not
favored and will not be upheld if liberal construction of the pleadings would
be sufficient to sustain the action. Ryan v. Lodermeier, 387 N.W.2d 652, 653 (Minn. App. 1986).
Motion to Strike
The record on appeal is limited to
the “papers filed in the trial court, the exhibits, and the transcript of the
proceedings, if any.” Minn. R. Civ. App. P. 110.01. When an appellate brief or appendix contains
matters that are not part of the record below and were not considered by the district
court, a motion to strike is properly granted.
Krueger v. Wash. Fed. Sav. Bank, 406 N.W.2d 543,
Anderson filed a
motion to strike certain materials and references to those materials in Honan’s appendix and brief. Anderson argues that those
materials, while part of the district court file, were extraneous to the
pleadings and were not considered by the district court in granting judgment on
the pleadings. See Minn.
R. Civ. P. 12.03 (providing that if matters outside pleadings are considered,
motion becomes one for summary judgment).
seeks to strike minutes of a January 25, 2000 board meeting. Because the transcript of the January 31,
2000 board meeting was part of the record considered by the district court and
specifically refers to the actions taken by the board on January 25, we deny Anderson’s
motion to strike the minutes of the January 25 meeting. Anderson
also seeks to strike documents submitted as exhibits to an August 4, 2003
affidavit submitted by Honan’s attorney. Although these documents are part of the
district court file, the district court limited itself to a review of the
pleadings, as did this court on this motion for judgment on the pleadings. Because we have not considered these
exhibits, we deny Anderson’s
motion to strike.
Claims under Minnesota Constitution
Count I, Honan alleged that all respondents
violated his rights to due process, equal protection, and free speech under the
Minnesota Constitution. In granting judgment on the pleadings and
dismissing this count, the district court concluded:
set forth a cause of action, but also admit facts which defeat the claim. Monetary damages are not permitted in these
types of cases unless statutes or appellate courts have recognized the damages
sought. Bird v. State, 375 N.W.2d
36, 40 (Minn. Ct. App. 1985). Equitable
relief is available to a plaintiff, but not monetary damages. Bird, 375 N.W.2d at 40-41.
Honan insists that his
complaint seeks both monetary and injunctive relief. He acknowledges that Count I specifically
seeks monetary damages under the Minnesota Constitution, but asserts that it
also seeks injunctive relief in the prayer for relief. The simple fact that Honan
makes a general request for injunctive relief does not transform his detailed claim
for money damages under Count I into one for injunctive relief. See Viilianinen
v. Am. Finnish Workers Soc., 236 Minn.
412, 417, 53 N.W.2d 112, 115-16 (1952) (“In passing upon the orders sustaining
the demurrers, it must be borne in mind that the sufficiency of the complaint must
be determined exclusively upon the facts pleaded; therefore, prayer for relief
cannot be considered as a part of plaintiffs’ cause of action.”).
Minnesota Constitution allows claims for “just compensation” for private
property taken, destroyed, or damaged for public use. See Johnson v. City of Minneapolis,
667 N.W.2d 109, 115 (Minn.
2003). But Minnesota courts have consistently held that
there is no private right to monetary damages for deprivation of due process
rights under the Minnesota Constitution.
See, e.g., Mitchell v. Steffen,
487 N.W.2d 896, 905-06 (Minn. App. 1992) (recognizing that Minnesota
does not recognize tort for violation of due process rights), aff’d, 504 N.W.2d 198 (Minn. 1993); Bird v. State, Dep’t of Pub. Safety, 375
N.W.2d 36, 40 (Minn. App. 1985) (same).
conclude that the district court did not err in granting judgment on the
pleadings and in dismissing Count I, which alleges violation of the Minnesota
Constitution, with respect to all of the respondents.
Honan’s complaint includes a defamation claim against
Pierce (Count III)
and defamation claims against the county and Anderson
(Count IV). The district court granted
judgment on the pleadings based on its determination that the allegedly
defamatory statements were made more than two years before Honan
filed his complaint. See McGovern v.
Cargill, Inc., 463 N.W.2d 556, 558 (Minn.
App. 1990) (stating that statute of limitations for defamation begins to run on
publication, not discovery). Because the
running of the statute of limitations may have been tolled with respect to
Honan’s claim against Pierce and because the county and Anderson never raised a
statute of limitations defense to Honan’s defamation claims, we decline to
affirm dismissal of Honan’s defamation claims on statute of limitation grounds
and address the other arguments raised by the parties.
Pierce argues that Honan’s
defamation claim fails as a matter of law because the complaint fails to set
out any defamatory statements with particularity. We agree.
“[A]llegedly defamatory statements must be included in a plaintiff’s
complaint.” Bebo v. Delander, 632 N.W.2d 732, 739 (Minn.
App. 2001), review denied (Minn. Oct. 16,
alleges that Pierce made defamatory statements to
Soldo during her investigation. In
particular, Honan’s complaint alleges that Pierce
statements, to individuals including but not limited to the County and to
Soldo, that Honan had intimidated him, threatened him, or asked him to testify
in favor of Honan during the Soldo investigation (the precise words of which,
upon information or belief, are contained in the [reports], or some other
document . . . controlled by defendants and [Honan] reserves the right to amend
after obtaining those documents, which the defendants have steadfastly refused
give him proper access to) which were untrue, malicious, and defamatory of
[Honan’s] personal, professional, and business reputation.
On appeal, Honan claims
that he must “perform additional discovery before he can quote the exact
defamatory statements in this complaint.”
However, Honan has had ample time and opportunity to conduct discovery
and ascertain the exact wording of any defamatory statements made by Pierce,
particularly given the string of lawsuits between these parties, including
Pierce’s 2000 state district court action, Honan’s proposed counterclaim in
that action, and Honan’s federal district
court action. Because the allegations
against Pierce lack specificity, we conclude that judgment on the pleadings was
properly granted on Count III.
With respect to Count IV, Honan alleges that
the county and Anderson
made defamatory statements against him during the January 31, 2000 board
meeting. Honan’s allegations against Anderson center on comments Anderson
made during that meeting; his allegations against the county center on the
resolution adopted by the board at the conclusion of the meeting.
county argues that it is entitled to statutory immunity for the adoption of the
resolution. See Minn. Stat. § 466.03, subds. 5 (providing immunity to
governmental entities and employees “exercising due care” with respect to
execution of “valid or invalid” statute or resolution), 6 (providing immunity
for performance of discretionary function or duty) (2000). We disagree.
Whether the county exercised due care or was performing a discretionary
act is a question of fact that we cannot determine from the pleadings
alone. See Boop v. City of Lino Lakes, 502
N.W.2d 409, 411, (Minn. App. 1993), review
denied (Minn. Sept. 10, 1993).
Further, defamation is classified as a personal injury and is not
subject to statutory immunity under Minn. Stat. § 466.03, subd. 8 (2000). Johnson v.
Northside Residents Redev. Council, 467 N.W.2d 826, 830 (Minn. App. 1991)
(citing Minn. Stat. § 466.03, subd. 8), review
denied (Minn. July 24, 1991).
Anderson argues that the
district court properly dismissed Honan’s
claim against him because the complaint merely alleges defamation by
does not recognize a claim for defamation by implication brought by a public
official such as Honan. Diesen
v. Hessburg, 455 N.W.2d 446, 451 (Minn.
1990) (holding that allegedly false implication arising out of true statements
about county prosecutor in newspaper is not defamatory speech, but is protected
criticism of a public official). Because
we cannot determine, at this stage of the proceedings, whether the statements
made by Anderson
are true or false, the meaning of the statements must be considered in the
context in which they were made. See Schlieman v. Gannett
Minn. Broad., Inc., 637 N.W.2d 297, 304
(Minn. App. 2001) (noting that Diesen
did not change the base components of public-official defamation law). When read in context, the statements
challenged by Honan could arguably be
considered defamatory because they tend to charge him with misconduct in
office. See, e.g., Hammersten v. Reiling, 262 Minn. 200, 206-07, 115 N.W.2d 259, 264
(1962) (stating that false accusations made against public official “importing a
want of integrity or corruption in office” are defamatory).
Anderson and the county also insist that they are entitled
to a qualified privilege for statements made during the county board meeting. See
Jones v. Monico, 276 Minn.
371, 376, 150 N.W.2d 213, 216 (1967) (holding council member entitled to
qualified privilege for statements made during council meeting, where remarks
were not defamatory on their face and were without malice). Such a privilege, however, can be defeated by
actual malice, which requires a showing of intent to cause harm through
falsehood. Beatty v. Ellings, 285 Minn. 293,
301-02, 173 N.W.2d 12, 17-18 (1969); see
also Bol v. Cole, 561 N.W.2d 143,
150 (Minn. 1997) (stating that “[m]alice
cannot be implied from the statement itself or from the fact that the statement
Honan’s allegations regarding the manner in which the investigation was
conducted and his allegations regarding the retaliatory motives of the county
board and its commissioners, we cannot conclude Honan
has failed to include allegations of actual malice so as to warrant dismissal
of his defamation claim against the county.
We therefore conclude that, at this stage of the proceedings, the
district court erred in granting judgment on the pleadings and dismissing Count
IV against the county and Anderson.
Minnesota Open Meeting Law Claim
of Honan’s complaint alleges that Anderson
participated in closed meetings of the county board at which the board
discussed possible disciplinary action against Honan. Honan
alleges that these meetings were without proper notice of a statement on the
record of the purpose of the closed meeting.
Honan argues that Anderson is liable under the open
meeting law for his complicity in the board’s alleged violations.
meeting law is aimed solely at governing bodies and the members of those
bodies, and provides that “any person” may incur civil fines and penalties for
violating Minn. Stat. § 13D.06, subds. 1, 3 (2000). As legal counsel for the board, Anderson
had the authority to make recommendations and give advice to the board; he did
not, however, have any power to decide issues before the board or otherwise
call meetings. See The Minn. Daily v. Univ. of Minn., 432 N.W.2d 189, 193 (Minn. 1988) (open
meeting law did not apply to state university’s advisory committee), review denied (Minn. Jan. 25, 1989); Minn. Educ. Ass’n v. Bennett, 321 N.W.2d
395, 397 (Minn. 1982) (open meeting law did not apply to school superintendent
who advised board but was not himself a board member). We therefore conclude that the district court
did not err in dismissing Honan’s claim against Anderson for
violation of the open meeting law.
Minnesota Government Data Practices Act Claim
of Honan’s complaint alleges that Anderson violated the data
practices act when he failed to disclose certain information and disclosed
other confidential information. A civil
action for damages “may only be brought against ‘a political subdivision,
responsible authority, statewide system, or state agency which violates any provision
of this chapter.’” Walker v. Scott County, 518 N.W.2d 76, 78 (Minn. App. 1994) (quoting Minn. Stat. §
13.08, subd. 1 (1992)), review denied
(Minn. Aug. 24, 1994). A “responsible
authority” is defined as an “individual designated by the governing body of
that political subdivision as the individual responsible for the collection,
use, and dissemination of any set of data on individuals, government data, or
summary data, unless otherwise provided by state law.” Minn. Stat. § 13.02, subd. 16 (2000); see also Minn. R. 1205.0200, subd. 14(A)
(2001) (“An individual who is an employee of the county shall be appointed by
the county board to be the responsible authority for any data administered
outside the offices of elected officials.”).
our review of the pleadings, we conclude that Anderson cannot
be considered the “responsible authority” under the act. Rather, the county’s answer specifically
states that the county appointed Jan Johnson,
the County Auditor/Treasurer, as the “responsible authority” under Minn. Stat.
§ 13.02, subd. 16. The district court
thus did not err in dismissing Count VI as against Anderson.
Affirmed in part, reversed in part, and
remanded; motion denied.