Former Communications Director Can't Sue Sec'y of State for Misrepresentation, MN High Court Holds

Minnesota case law summary by Attorney Richard Clem: sovereign immunity.

Joan M. Nichols v. State of Minnesota, Office of the Secretary of State, et al.. MN sovereign immunity

In 2011, Joan Nichols resigned her position in Ohio to come to Minnesota to serve as communications director at the Minnesota Office of the Secretary of State. She interviewed with then-Secretary of State Mark Richien and then-Director of Governmental Affairs Beth Fraser. She started the new job on January 4, 2012, but her employment ended on February 19, when her probationary contract was not renewed.

She sued, alleging that during the interview and in the online job posting, there were knowingly false representations about the job duties. She alleged that these falsehoods were intended to induce her to leave her job in Ohio. She stated that she would not have taken the Minnesota job if she had known about the misrepresentations.

The state moved to dismiss on the grounds of sovereign immunity, and the District Court, Ramsey County, agreed in part. It agreed that the common-law claims should be dismissed, but held that the statutory claims under Minn. Stat. 181.64 and 181.65 could proceed. Those sections allow a lawsuit if an "organization of any kind" induces a worker to change from any place to another through knowingly fals representations. The District Court took the position that this broad language included the state, and operated as a waiver of the state's immunity.

The state brought an interlocutory appeal to the Minnesota Court of Appeals, which reversed on January 21, 2014.

Nichols then brought the case to the Minnesota Supreme Court. The state high court agreed with the Court of Appeals and affirmed. The court noted that when a statute does not explicitly name the state as a potential defendant, the statute must "leave no doubt" as to the Legislature's "plain, clear, and unmistakable" intent to include the state. It held that this high standard was not met in this case. The court noted that other statutes using similar language add language to include the state, and cited examples.

The court left open the possibility of tort liability by the state, even though the state is not explicitly named in the statute. But in this case, the language was insufficient.

842 N.W.2d 20, affirmed.

No. A13-0529 (Minn. Feb. 4, 2015).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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