David P. Honan, Appellant, vs. County of Cottonwood, Minnesota, et al., Respondents, Scott T. Anderson, et al., Respondents, Brian Pierce, Respondent.

David P. Honan, Appellant, vs. County of Cottonwood, Minnesota, et al., Respondents, Scott T. Anderson, et al., Respondents, Brian Pierce, Respondent. A04-1636, Court of Appeals Unpublished, August 30, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1636

 

 

David P. Honan,

Appellant,

 

vs.

 

County of Cottonwood,

Minnesota, et al.,

Respondents,

 

Scott T. Anderson, et al.,

Respondents,

 

Brian Pierce,

Respondent.

 

 

Filed August 30, 2005

Affirmed in part, reversed in part, and remanded;

motion denied
Forsberg, Judge*

 

Cottonwood County District Court

File No. C6-03-157

 

Jill Clark, 2005 Aquila Avenue North, Golden Valley, MN  55427 (for appellant)

 

Richard A. Beens, Brian T. Benkstein, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN  55402 (for respondents County of Cottonwood, et al.)

 

Charles E. Lundberg, Mark D. Belinske, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN  55402 (for respondents Anderson, et al.)

 

Jon K. Iverson, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN  55438 (for respondent Pierce)

 

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant 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.

            The 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 (Count II) 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.

FACTS

            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, respondent Anderson "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[1] 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.  Anderson 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. App. 2005).

            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, 545 (Minn. App. 1987). 

            Respondent 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).

            In particular, Anderson 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

            Under Count I, Honan alleged that all respondents violated his rights to due process, equal protection, and free speech under the Minnesota Constitution.[2]  In granting judgment on the pleadings and dismissing this count, the district court concluded:

The pleadings 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.").

            The 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).

            We therefore 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.

            Defamation Claims

            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, 2001).  Honan alleges that Pierce made defamatory statements to Soldo during her investigation.  In particular, Honan's complaint alleges that Pierce

made false 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.

            The 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 implication.  Minnesota 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.[3]  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 was false").

            Given 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

            Count IV 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.

            The open 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

            Count VI 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.").

            Based on 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.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Pierce eventually sued Honan and the county in state district court for violation of the whistleblower statute, defamation, and tortious interference with contract.  On appeal, this court affirmed the district court's confirmation of a settlement between the county and Pierce and dismissal of Pierce's claims against Honan and the county.  Pierce v. Honan, 2001 WL 682885 (Minn. App. June 19, 2001).

[2]  The allegations in Honan's complaint are substantially identical to those alleged in the complaint he filed in federal district court alleging violation of federal civil rights under 42 U.S.C. §§ 1983 (alleging defendants acted under color of state law to deprive Honan of his rights), 1985 (alleging defendants engaged in conspiracy to deprive Honan of those rights).  Judgment on the pleadings was granted dismissing those federal civil rights claims with prejudice.  Honan v. County of Cottonwood, 2003 WL 1572138 (D. Minn. Mar. 20, 2003).

[3] Anderson also argues that, as legal counsel for the board, he is entitled to an absolute privilege for statements made during a judicial or quasi-judicial proceeding.  See Restatement (Second) of Torts § 586 (providing that attorneys are absolutely privileged to publish defamatory matter during the course of a judicial proceeding).  Because we cannot determine from the pleadings alone whether the council meeting was a judicial or quasi-judicial proceeding or whether Anderson was acting solely as legal counsel for the county at the time he made those statements, we decline to affirm the dismissal of the defamation claim against Anderson on the basis of absolute immunity.