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Nielsen v. Bohnen

Court of Appeals of Minnesota

August 26, 2013

Jeffrey L. Nielsen, Respondent,
Stephen Carl Bohnen, Appellant, Keith Francis Mueller, et al., Defendants.


Washington County District Court File No. 82-CV-10-6694

Dale M. Wagner, Mark R. Bradford, Bassford Remele, A Professional Association, Minneapolis, Minnesota; and Thomas W. Pahl, Foley & Mansfield, PLLP, Minneapolis, Minnesota (for respondent).

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, St. Louis Park, Minnesota; and Michael R. Quinlivan, Pearson Quinlivan, P.C., Maplewood, Minnesota; and Robert A. Hill, Robert Hill Law, Ltd., Maplewood, Minnesota (for appellant).

Gary A. Van Cleve, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota (for amicus curiae Minnesota Sheriffs' Association).

Considered and decided by Rodenberg, Presiding Judge; Johnson, Chief Judge; and Connolly, Judge.


Appellant moved unsuccessfully for summary-judgment dismissal of respondent's claims on grounds of immunity under Minn. Stat. § 554.03 (2012), under Minn. Stat. § 604A.34 (2012), the Noerr-Pennington doctrine, and the qualified-privilege doctrine. He challenges the denial of his motion. Because the district court correctly concluded that appellant is not entitled to immunity from respondent's claims, we affirm.


On October 4, 2010, respondent Jeffrey Nielsen saw campaign signs posted by appellant Stephen Bohnen, a candidate for city council. Respondent thought the signs were posted in violation of city ordinances; he removed them to take them to the city hall. One of appellant's campaign volunteers observed the signs on top of respondent's car and followed respondent into a parking lot, where they had a confrontation. The volunteer called appellant, who reported the matter to the sheriff's office. A deputy went to respondent's home. Respondent admitted taking the signs and confronting the volunteer. The deputy told respondent not to remove any more signs and said no charges would be filed.

Appellant objected to the fact that no charges were filed and called the deputy several times to demand that respondent be charged. The deputy discussed the matter with his supervisor, and they agreed that there was no basis to charge respondent. After the deputy informed appellant of this decision, appellant called the sheriff directly and again insisted that respondent be charged.

The sheriff met with the supervisor and the deputy. The deputy was told to review the case and determine whether there were any grounds to charge respondent, and, if so, to charge him. Respondent was ultimately charged with theft, disorderly conduct, and a right-of-way violation, and he pleaded not guilty to all charges.[1]

Respondent brought this action against appellant, the volunteer, and the county, seeking a declaratory judgment that appellant's signs violated the ordinances and making claims of creating a nuisance, fraud, malicious prosecution, and civil conspiracy.

Appellant moved for summary judgment under Minn. Stat. § 554.01-.04 (2010) (prohibiting strategic lawsuits against public participation and imposing a stay on discovery) (the anti-SLAPP statute); he also sought punitive damages and $100, 000 in compensatory damages. Respondent filed an affidavit under Minn. R. Civ. P. 56.05 stating that discovery was not complete. Appellant's motion was denied without prejudice in an order that said he could again move for summary judgment when discovery was complete and respondent could amend his complaint.

Two weeks later, appellant again moved for summary judgment, making the same anti-SLAPP argument and relying on the same facts. A hearing on the motion was held, but no order resulted because, in response to appellant's motion, the judge recused himself.

Appellant refused to respond to the respondent's discovery requests and moved to quash the subpoenas. Appellant moved a third time for summary judgment, again invoking the anti-SLAPP statute and adding two alternative grounds for immunity: Minn. Stat. § 604A.34 (2010) (conferring immunity on those who, in good faith, seek the involvement of law enforcement) and common-law immunities. Appellant also sought vacatur of the order denying his first summary-judgment motion. While those motions were pending, appellant moved to dismiss the amended complaint and for sanctions against respondent and his attorney. Respondent again filed a rule 56.05 affidavit saying discovery was not complete.

A new district court judge denied appellant's motions on the grounds that the anti-SLAPP statute does not apply to reports to law enforcement; that a fact question as to whether appellant's efforts to have respondent charged were in good faith precluded summary judgment on the Minn. Stat. § 604A.34 claim; and that appellant was not entitled to common-law immunity.

Appellant challenges the denials of his summary-judgment motions, arguing that he is entitled to dismissal of respondent's claims under (1) the anti-SLAPP statute, (2) Minn. Stat. § 604A.34, (3) the Noerr-Pennin ...

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