Vassallo ex rel. Brown v. Majeski

ANDERSON, Justice,

dissenting.

I agree with the court’s framework of analysis, including its rejection of the court of appeals’ decision to address the violation of a duty before determining if the duty was ministerial or discretionary. I also largely agree with the classifications of the duties as determined by the majority, but I believe that the plain language of the portion of Hennepin County Sheriffs Office (HCSO) Policy 6^402 requiring the use of both red lights and siren during an emergency response creates a ministerial duty. Although Deputy Majeski and Hen-nepin County have introduced some evidence that this written policy was modified by unwritten policies that made the meaning of “use” more discretionary, given our standard of review, this evidence is not conclusive enough to support summary judgment. Therefore, because there is a genuine issue of material fact regarding the existence and content of unwritten policies related to HCSO Policy 6-402, I would reverse and remand for further proceedings.

I.

This case is presented on official immunity grounds. Because official immunity and the closely related concept of statutory immunity are often conflated, it is helpful to understand the separate purposes behind each concept. Statutory immunity was created as part of a move away from broader sovereign immunity, which originated in the ancient precept that “the king can do no wrong.” See Langford v. United States, 101 U.S. 341, 342-48, 25 L.Ed. 1010 (1879) (holding that the English constitutional maxim “the king can do no wrong” is inapplicable under our constitutional system). As states sought to abolish full sovereign immunity, statutes such as Minn.Stat. § 466.02 (2012) were enacted. This statute permits broad government liability for torts, stating, “[Ejvery municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.” Id. But such broad liability created concern about the separation of powers, as the rise in litigation surrounding government conduct would increase judicial oversight of executive and legislative actions. Michael K. Jordan, Finding a Useful Path Through the Immunity Thicket, Bench & B. Minn., Oct. 2004, at 24, 26. This was of particular concern for executive and legislative responsibilities that involved resolving policy issues through the political process. Id. at 26. To protect policymaking functions from judicial review, an exception to government liability was carved out in Minn.Stat. § 466.03, subd. 6 (2012), for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” In this context, discretion refers not to the mere exercise of independent judgment, but specifically to such judgment used in the context of policymaking. Elwood v. Cnty. of Rice, 423 N.W.2d 671, 678 (Minn.1988).

In contrast with the underlying rationale for statutory immunity, official immunity allows public employees to perform duties that require personal judgment without fear of personal liability. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn.2004). As this court has stated:

Both doctrines are phrased in terms of whether discretion was involved, but *467they are based on entirely different rationales. Governmental [statutory] immunity rests on the need to protect policymaking activities that involve a balancing of social, political or economic considerations. Official immunity, on the other hand, protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.

Elwood, 423 N.W.2d at 678 (citations omitted). In the context of official immunity, unlike statutory immunity, discretion is not limited to policymaking decisions, and official immunity can apply to any act that involves a significant exercise of independent judgment.1 Anderson, 678 N.W.2d at 657. But official immunity does not apply to violated ministerial, or nondiscretionary, duties, and it does not protect willful or malicious discretionary acts. Id. at 660-62. As the majority correctly notes, a duty is classified as ministerial if it is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts,” and therefore does not involve any significant exercise of independent judgment. Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937). We have also considered if the duty was “simple and definite,” including the “nature, quality, and complexity of [the] decision-making process.” Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976).

II.

Law enforcement officials and drivers of emergency vehicles responding to an emergency are usually given wide discretion in their actions. See Mumm v. Mornson, 708 N.W.2d 475, 492 (Minn.2006). The need for discretion in emergencies stems from the necessity of making quick decisions, often with imperfect information, in situations in which hesitation or inhibition may result in significant harm to the public. See Kari v. City of Maplewood, 582 N.W.2d 921, 923-24 (Minn.1998). But discretion in emergencies can be limited by detailed policies that require specific actions. See Mumm, 708 N.W.2d at 491-92; Thompson v. City of Minneapolis, 707 N.W.2d 669, 675 (Minn.2006).

In this case, some of Deputy Majeski’s duties were created by internal department policies on emergency responses. Hennepin County Sheriffs Office Policy 6-402 provides, as relevant here, “The use of both red lights and siren is required when responding to an emergency.” (Emphasis added.) As with a statute, the proper interpretation' of a county policy begins with the plain language. See Mumm, 708 N.W.2d at 491 n. 14 (examining the plain language of a department policy). Black’s Law Dictionary defines “use” as “[t]he application or employment of something.” Black’s Law Dictionary 1681 (9th ed.2009). Thus, the policy requires that both red lights and siren be employed, which under the common .understanding means both should be turned on. The majority argues that the lack of language such as “in a continuous manner” or “at all times” means that the officer has discretion as to when to employ the lights and sirens, suggesting that they need only be employed at some point during the response. But this *468interpretation ignores the temporal element that is included in the policy — “when responding to an emergency.” Thus, the plain language is clear that when an emergency response is required, both the red lights and a siren must be activated. The duty to have both activated does not end until the temporal element included in the policy — “when responding to an emergency” — ends. This specific and concrete action is “required,” which removes the discretion of officers and creates a ministerial duty as an absolute and certain imperative.2

The majority does not explicitly classify the duty to use red lights and a siren as either ministerial or discretionary, instead stating more or less simultaneously that Deputy Majeski “did not violate any ministerial duty created by HCSO Policy 6-402” and that “Deputy Majeski had discretion to turn off his vehicle’s siren.” The majority is unable to directly characterize whether the duty is ministerial or discretionary because labeling the duty as discretionary ignores the clear ministerial language of the policy, including that the “use ... is required.” And classifying the duty as ministerial would force the majority to define what the policy means when it says “use ... when responding to an emergency” if that language does not refer to the plain meaning of continuous use. By avoiding a direct characterization of the nature of the duty, the majority runs afoul of its own guidance that the “first task is to determine whether Deputy Majeski’s conduct in operating his vehicle’s lights and siren was discretionary or ministerial.” The majority has needlessly complicated this task by reading discretionary elements into the lights and siren portion of HCSO Policy 6-402 that are simply not consistent with the plain meaning of the policy. Thus, I would hold that HCSO Policy 6-402, requiring the use of red lights and a siren during an emergency response, creates a ministerial duty on its face.3

III.

Because the majority mentions in passing that there is evidence in the record suggesting that Deputy Majeski’s actions in turning off the siren were consistent with his field training, a word needs to be said about modification of written policies by unwritten policies. In Anderson v. Anoka Hennepin Independent School District 11, we held that an unwritten department policy on the disengagement of a *469table saw blade guard formed the basis of a ministerial duty. 678 N.W.2d at 658. This unwritten policy had been “discussed in staff meetings regarding safety policies at the beginning of the school year and throughout the year,” and was referenced in a safety test given to students. Id.

It is certainly correct to note that there is evidence of unwritten policies and training that conflict with the plain language of HCSO Policy 6-402. But this dispute comes to us on summary judgment and the record also contains contrary evidence on this point. Deputy Majeski testified that in training he was also told that “[a]ny time that you would — you exceed state and local traffic laws in response to getting a call, you need to activate your emergency red lights and sirens.” This explanation implies that Deputy Majeski was trained to keep the lights and siren activated as long as he was violating traffic laws, as when running a red light. Another officer testified that he had been told that it was permissible to turn off the siren before the lights, but the only example of a situation he could think of in which that would apply is when the light and siren functions are controlled by two different switches, forcing the operator to turn off one before the other with a momentary delay in between. That officer specifically denied he had ever been told that there are any other exceptions to HCSO Policy 6-402. Likewise, the head of the HCSO Professional Standards Division stated, “By these rules, you have to use both your red lights and your siren,” and stated that although in theory there could be some unwritten exceptions to this, she could not provide any exceptions or examples of a situation in which it would be permissible to operate one without the other during an emergency response.

While there is some evidence that unwritten policies may have created exceptions to HCSO Policy 6-402, the content of these unwritten directives, -and perhaps whether the directives even exist, is unclear based on the contradictory record. Given the conflicting evidence and our summary judgment standard of review, I would conclude that the court of appeals should be affirmed as modified and the matter remanded to the district court for further proceedings on the issue of whether HCSO Policy 6^02 was modified by any unwritten policies.

Because I conclude that the plain language of HCSO Policy 6-402 creates a ministerial duty to use red lights and a siren during the entire course of an emergency response, I respectfully dissent.

. Whether such a wide sweep of immunity remains appropriate as the scope of government increases is a question I save for another day. While emergency responses are a natural place to retain officer discretion, I am concerned that local governments could, in theory, immunize a vast amount of official conduct simply by creating internal policies that authorize discretion. Here I simply note that "[a]s the role of government has expanded over time, so too has the opportunity for official misconduct.” See Note, Government Tort Liability, 111 Harv. L.Rev.2009, 2009 (1998).

. Although the majority claims that the use of lights and a siren is affected by the discretionary duty to drive with "due regard for the safety of all persons” contained in the next sentence, there is no reason why HCSO Policy 6-402 cannot contain both discretionary and ministerial duties. Carving a ministerial duty out of a general category of discretionary acts is not only possible, it also follows the pattern of its counterpart in Minn.Stat. § 169.03, subd. 2 (2012), in which officers use discretion to drive "as necessary for safety,” but are specifically required to use a red light or siren before entering an intersection on a red light.

. The rationale behind the inclusion of a ministerial duty to provide warning to other vehicles and pedestrians during an emergency response is not difficult to discern. Minnesota Statutes § 169.03 (2012) exempts emergency vehicles from certain traffic regulations during an emergency response.. This exemption, while perhaps necessary for overall public safety, does not come without cost, including the risk of death and serious injury for bystanders and others not involved in the emergency. The National Highway Traffic Safety Administration reports that in 2011, 108 people were killed in accidents involving emergency response vehicles. Nat’l Highway Traffic Safety Admin., Traffic Safety Facts 2011 96 tbl. 61 (2013). In Minnesota alone, there were 116 injury-causing accidents involving police vehicles in 2012. Minn. Dep't of Pub. Safety, Minnesota Motor Vehicle Crash Facts 2012 20 tbl. 1.12 (2013).