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St. Paul City Attorney Lyndsey Olson has filed a defamation lawsuit against state Rep. John Lesch.
The Minnesota Court of Appeals has ruled that Lesch does not have legislative immunity in the case.
(File photo: Kevin Featherly)

Lesch not immune from defamation suit

 By: Kevin Featherly  July 2, 2019 0

Rep. John Lesch, DFL-St. Paul, is not entitled to legislative immunity from a defamation
lawsuit, the state Court of Appeals ruled Monday, because a scalding letter he wrote about
St. Paul City Attorney Lyndsey Olson to her boss was not a “legitimate legislative activity.”

Therefore, the court ruled, neither the state nor federal constitutions’ “Speech or Debate”
clauses shield the politician from Olson’s suit. Nor does any state statute. Therefore, the case
may proceed.

Written by Court of Appeals Judge Lucinda Jesson on behalf of a unanimous three-judge

panel, the ruling rejects Lesch’s appeal of Ramsey County District Court Judge Frank Magill’s
2018 ruling in the case. Magill last year declined to dismiss Olson’s suit on grounds of
legislative immunity.

“We are pleased with it and we are not really surprised,” Olson’s attorney Lisa Lamm
Bachman said of Monday’s decision. “It’s a well-reasoned opinion and it is consistent with the
case law.”

Lesch’s attorney, Marshall Tanick, said he plans to appeal to the Minnesota Supreme Court.

“I think that inherent in this case is concern about the separation of powers and whether the
judicial branch should be second-guessing the legislative branch on how legislators go about
their activities and business,” Tanick said.

The Court of Appeals was wrong, Tanick said, to decide that Lesch’s letter to newly elected
St. Paul Mayor Melvin Carter was anything but a legitimate piece of legislative business. The
letter, dated Jan. 3, 2018, challenged Olson’s fitness as city attorney and made a Data
Practices request to document the openness of her hiring process.

Lamm Bachman said Lesch was acting on behalf of no one but himself when he sent that
letter.

“The court concluded it was very personal and he was personally motivated,” she said. “It
wasn’t tied to any legitimate legislative activity. And for that reason legislative immunity
didn’t apply.”

The Court of Appeals last year declined to review a separate Magill finding, in which declined
to dismiss the suit on grounds that Lesch’s letter contained a form of hyperbole that is
protected by the First Amendment.

‘Grave concerns’
In her Feb. 16, 2018, District Court complaint, Olson accused Lesch of defaming her with his
hard-bitten missive, sent on House letterhead and marked “personal and confidential.”

Her suit “involves issues of ongoing gender discrimination that permeate our society,” the
complaint states in its introduction. However, the bulk of its text focuses on the defamation
allegations.

Lesch, a retired National Guard infantry captain, registered “grave concerns” about Olson’s
hiring in his letter to Carter.

“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 elaborate on that statement.

The letter also says that Lesch’s personal observations—he does not describe what they
were or how he came by them—were consistent with a National Guard investigation against
Olson for “operating a ‘toxic work environment.’”

Olson, a Bronze Star medal recipient, acknowledges that two anonymous Inspector General
complaints were filed against her, but both were dismissed.

She claimed they were an effort by a “small group of males”—including one who she said
had sexually harassed her. They wanted Olson ousted as National Guard general counsel,
she maintained.

Lesch is never identified in the complaint among that “small group of males.” He and Olson
served in the National Guard during the same period, but apparently never worked directly
together.

Olson remains a National Guard lieutenant colonel, according to her LinkedIn page. Lesch is
retired from the service. He currently is the Minnesota House’s Judiciary committee chair and
works as a private-practice attorney.

House DFL and GOP caucus leaders, contacted through their spokespeople, were unwilling to
comment on the case.

In addition to sending the letter, Olson’s complaint says, Lesch made repeated attempts to
reach Carter by phone, demanding a meeting about the hiring. He also “made verbal
statements to a number of St. Paul citizens and public servants in an effort to injure Ms.
Olson’s reputation and standing in the community,” the complaint said. Those allegations are
not detailed.

Olson’s suit alleges defamation per se and seeks damages in excess of $50,000, court costs
and any other award the court deems just.

‘First impression’
The case is one of first impression, the Court of Appeals opinion noted. The constitutional
Speech or Debate Clause is meant to protect legislators from “intimidation by the executive
branch and ‘accountability before a possibly hostile judiciary,’” Jesson’s opinion states.

While that protection is “broadly construed,” case law demonstrates it is not all-
encompassing, the ruling continues.

Legislative acts encompass things like introducing and voting for bills, distributing committee
reports to other legislators and providing official committee reports to the media or other
publishers, Jesson writes.

“But legislative immunity does not extend to the transmittal of allegedly defamatory
statements in press releases and newsletters, efforts by members of Congress to influence
the executive branch or attempts to influence the Department of Justice in enforcing the
laws,” she continues.

Minnesota Statutes Section 540.13 protects lawmakers, legislative officers and staff from civil
actions stemming from “any act done in pursuance of legislative duties.” But its protection
are identical to what the Speech or Debate clause affords, Jesson writes. So her ruling relies
mostly to federal case law for guidance.

She cites numerous cases, but highlights a particular U.S. Supreme Court case, Hutchinson
v. Proxmire,as being similar to Lesch’s.

In that 1979 ruling, the court found that former Wisconsin U.S. Sen. William Proxmire was
not protected by the Speech or Debate Clause when he awarded his sarcastic “Golden
Fleece” award to a behavioral scientist, whose publicly funded research the senator deemed
a waste of the taxpayer dollars.

There, Chief Justice Warren Burger concluded that floor speeches and discussions with staff
are protected. But newsletters and press releases are neither “essential to the deliberations
of the Senate” nor part of the “deliberative process.” Therefore, the clause did not protect
Proxmire.

In a footnote, Jesson acknowledges that Proxmire’s press releases were more broadly
distributed than Lesch’s private letter. But “the degree of dissemination is not determinative
of what is defined as legitimate legislative activity,” she writes.

Tanick takes issue with her “overly narrow and restrictive” definition of legislative activity.
The Proxmire analogy does not fit, he said, because the “widespread dissemination” of
senator’s press releases clearly exceeded the limits of legislative activity.

“Whereas, in this case,” he said, “Representative Lesch was writing a letter to the mayor
dealing with the issues that fall within his domain over at the Capitol, particularly data
practices issues.”

Lesch, a member of the Data Practices Commission and the House Judiciary chair, is an
expert on Minnesota’s open government laws, Tanick said. His letter to Carter was part of a
fact-gathering process that, at some point, could have led to legislation. That, he said, marks
it as legislative activity.

“The Speech or Debate Clause, as the court recognizes, is much broader than just speeches
and perorations made on the legislative floor,” Tanick said.

‘A good case’
David Schultz, is a Hamline University political science professor and attorney who teaches a
course in state constitutional law. He said he thinks Lesch has “a good case.”

Schultz believe the state Supreme Court likely will grant review because of its precedent-
setting nature and because it demonstrates a need to set boundaries for legitimate
legislative activity. He doubts Jesson’s ruling found the correct limits.

“Is it legitimate for a legislator from Saint Paul to comment to the incoming mayor of St. Paul
his thoughts about appropriate people to be in the city attorney’s office?” Schultz said. “I can
make a case that that’s legitimate legislative activity.”

Schultz said he thinks the Court of Appeals might have been too focused the nastiness of
Lesch’s letter, at the expense of the purely constitutional issue at hand.

“Part of what we could say here is that Lesch did something pretty despicable on one level,”
Schultz said. “The court got hung up on its despicableness.”

Lamm Bachman dismisses such thinking. She said she thinks the Supreme Court will decline
review of the case and instead send it back to District Court for trial. Jesson’s ruling, in her
estimation, is correct and airtight.
 “The whole premise of legislative immunity was so that the process would be protected—the
legislative process,” the attorney said. “This has nothing to do with the legislative process.”

ABOUT KEVIN FEATHERLY

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

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