State v. Losh

MEYER, Justice

(dissenting).

DISSENT

I respectfully dissent. The majority today effectively overrules this court’s recent precedent in State v. Johnson, 598 N.W.2d 680 (Minn.1999). We held in Johnson that driving after revocation in violation of Minn.Stat. § 171.24, subd. 2 (2006), is a “civil/regulatory traffic violation as to which the court has no jurisdiction when committed by tribal members on tribal land.” Johnson, 598 N.W.2d at 684. I would follow this holding and conclude that Losh’s driving after revocation offense was civil/regulatory, rather than criminal/prohibitory.1

Under the authority of Public Law 280 and the United States Supreme Court’s decision in California v. Cabazon Band of Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), only criminal laws can be enforced against tribal members on tribal land. See State v. Stone, 572 N.W.2d 725, 728-31 (Minn.1997). In Stone this court laid out a two-step approach for distinguishing between criminal and civil/regulatory state laws, based on the intent of the law. Id. at 730. First, a court must determine the focus of the analysis: the broad conduct will be the focus unless the narrow conduct presents “substantially different or heightened public policy concerns,” in which case the narrow conduct will be analyzed. Id. The second step is to apply the Cabazon test: if the conduct is generally permitted, subject to exceptions, the law is civil/regulatory, whereas if the conduct is generally prohibited, the law is criminal/prohibitory. Id. In close cases, the “shorthand public policy test” provides that the law is criminal/prohibitory if the conduct violates the state’s public criminal policy, which “seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.” Id.

In Johnson, this court was called upon to determine the status of the requirement in Minn.Stat. § 169.791 (2006) that a driver produce proof of insurance, and of the prohibition in Minn.Stat. § 171.24, subd. 2 (2006), of driving after revocation of a driv*747er’s license. 598 N.W.2d at 681. One of the two tribal members whose cases were consolidated in Johnson had her driver’s license revoked for failure to provide proof of insurance, and the other was cited for failure to produce proof of insurance after a minor traffic accident. Id. at 681-82. Applying Stone, this court considered the two laws separately, and concluded that both were civil/regulatory. Id. at 683-84. We declined to consider the offense that led to revocation, as it carried its own sanction. Id. at 684. We noted that in Stone we had held that driving without a valid license raised no policy concerns that were substantially different from the general policy concern for public safety. We concluded in Johnson that it would be inconsistent to find “heightened public policy” concerns for driving after revocation inasmuch as a tribal member is not required to have a driver’s license at all to drive on the reservation. Id. We thus held that “driving after revocation in violation of Minn.Stat. § 171.24, subd. 2, is ... a civil/regulatory traffic violation as to which the court has no jurisdiction when committed by tribal members on tribal land.” Id.

In this case, Losh was found guilty of the same offense as was at issue in Johnson, driving after revocation in violation of Minn.Stat. § 171.24, subd. 2. Our holding in Johnson should thus compel a holding here that the charged offense is civil/regulatory. “The doctrine of stare decisis directs that we adhere to former decisions in order that there might be stability in the law.” Woodhall v. State, 738 N.W.2d 357, 363 (Minn.2007) (quoting Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000)). Although we can depart from our own precedent when there are compelling reasons to do so, this case offers no such reason.

The majority attempts to distinguish Johnson on the basis that Losh’s driving privileges were revoked under the implied-consent laws for operating a vehicle with a blood-alcohol concentration of 0.15. The majority relies on our decision in State v. Busse, 644 N.W.2d 79 (2002), in which we concluded in the first step of our analysis that heightened safety concerns were presented by the offense of driving after cancellation based on the driver being inimical to public safety, and at the second step that MinmStat. § 171.24, subd. 5 (2006), is criminal/prohibitory. Although it is true that Busse limits Johnson to some extent, Busse took care to distinguish Johnson, not to overrule it. Busse, 644 N.W.2d at 87. As a result, Johnson should still have some applicability. Under the majority’s holding today, it is difficult to discern what exceedingly narrow fact pattern might be deemed appropriate for applying Johnson’s rule.

Under the particular facts of Busse, we determined that we could consider at the first step of our Stone analysis the underlying offense that resulted in the cancellation, Busse, 644 N.W.2d at 84, despite our explicit concern in Johnson that by doing so, “the offender could be subject to being sanctioned twice for the prior offense,” Johnson, 598 N.W.2d at 684. We did not, however, determine that considering the underlying offense was permissible in all situations. Rather, we relied on Stone, where we explicitly rejected the parties’ opposing arguments that we adopt a single focus, for one side broad, for the other narrow, on the conduct at issue:

[A] rigid application of either approach fails to yield a workable standard. If the broad conduct of driving is analyzed without any consideration of the nature of the specific traffic statutes, then virtually any traffic or driving-related statute would be considered civil, despite serious public policy concerns the specific statute may raise. Conversely, if each *748traffic statute is analyzed individually to determine if the narrow conduct is generally prohibited or permitted, practically every discrete aspect of a traffic law could be classified as criminal for the purposes of Public Law 280. Fortunately, Cabazon does not require this court to adopt either of these approaches.

Stone, 572 N.W.2d at 729-30. Clearly our precedent in Stone does not call for systematic adoption of the narrow focus that necessarily occurs when we consider the underlying offense. Although in Busse we concluded that looking at the underlying basis for the cancellation was not prohibited, we did not announce a rule requiring consideration of the underlying basis for the cancellation. Rather, we kept our focus on “whether the specific offense reflects heightened public policy concerns.” Busse, 644 N.W.2d at 84. The specific offense in Busse, driving after cancellation as inimical to public safety, is “inextricably linked to multiple driving under the influence convictions,” id. at 87, because the statute provides:

A person is guilty of a gross misdemean- or if:
(1) the person’s driver’s license or driving privilege has been canceled or denied under section 171.04, subdivision 1, clause (10);
(2) the person has been given notice of or reasonably should know of the cancellation or denial; and
(3) the person disobeys the order by operating in this state any motor vehicle, the operation of which requires a driver’s license, while the person’s license or privilege is canceled or denied.

Minn.Stat. § 171.24, subd. 5. We insisted in Busse on the fact that there is only one reason for which the driver’s license would be canceled because allowing the person to drive would be “inimical to public safety or welfare” under section 171.04, subdivision 1, clause (10), and that reason is multiple convictions for driving under the influence:

The legislature has provided that the commissioner shall revoke the license and deny or cancel a license as inimical to public safety of a person who has either (a) three driving under the influence convictions in five years or (b) four or more convictions in a lifetime.... By rule there are only three circumstances ' under which licenses are canceled .... All three relate to multiple alcohol or controlled substance violations and the commissioner is not allowed any discretion in the cancellation or denial.... Thus, cancellation as inimical to public safety necessarily requires multiple driving under the influence convictions.

Busse, 644 N.W.2d at 83-84 (citations omitted). We insisted several more times on the fact that the underlying offense was necessarily included in the offense of driving after cancellation as inimical to public safety. Id. at 85-87. The difference between Busse, where we considered the underlying offense, and Johnson, where we did not, lies in the fact that in Busse the statute included a reference to the reason for which the driver’s license was can-celled.

The concern we expressed in Stone that a narrow focus would always lead to finding a statute to be criminal/prohibitory comes to pass with the majority’s decision today. The majority’s approach will result in precisely the rigidity we rejected in Stone, as any offense leading to revocation or cancellation may, depending on the views of the individual judges sitting on this court, seem to raise heightened public safety concerns. Under today’s holding, I have no doubt that the fact pattern in Johnson will tomorrow lead to a conclusion that driving after revocation for failure to produce proof of insurance is criminal/pro*749hibitory because the underlying offense of failing to comply with the requirement to carry proof of insurance raises heightened public policy concerns.

I would not overrule Johnson’s holding that MinmStat. § 171.24, subd. 2, is civil/regulatory, and I would therefore conclude the State does not have jurisdiction over Losh’s offense. The issue remains whether the State has jurisdiction to enforce the offense when it is committed by an enrolled member of one band of the Minnesota Chippewa Tribe but on the reservation of a different band of that tribe. The district court ruled in the affirmative, but the court of appeals never addressed the issue. I would reverse and remand to the court of appeals to give that court an opportunity to rule on this issue.

. This would require a further decision as to whether state courts may nevertheless exert subject matter jurisdiction because Losh is not a member of the Leech Lake Band on whose reservation he was stopped, or because “exceptional circumstances” call for it. (Losh is a member of the Mille Lacs Band of the Minnesota Chippewa Tribe, which also includes the Leech Lake Band.)