Conlin v. City of Saint Paul

PAGE, Justice

(dissenting).

I respectfully dissent. Statutory immunity is meant to protect planning level governmental decisions from judicial second-guessing. See Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 718 (Minn.1988). The reviewing court is not to look behind those planning level decisions because of the risk of violating the separation of powers. See id. Here, the court contends that the City of St. Paul failed to meet its burden of proof and is therefore not entitled to statutory immunity because the affidavits submitted by Gary Erichson, head of the Street Maintenance Division of the Public Works Department of St. Paul, are conclusory and merely identify generalized concerns.

This court’s job is not to determine how the City went about weighing the factors that support its decision; rather we must determine whether the factors identified in Erichson’s affidavits were actually considered, whether they were political, economic or social in nature, and whether their consideration resulted in a planning level decision. See Holmquist v. State, 425 N.W.2d 230, 232 (Minn.1988). If there are no disputed material facts and the City establishes that (1) in fact it had a policy regarding posting signs and barricades at street sanding; (2) the factors identified in Erichson’s affidavit were considered in developing the policy and sealing projects; and (3) the factors considered are of a political, social or economical nature, the City has met its burden of proof and is entitled to statutory immunity.1

The evidence' in the record concerning the Erichson affidavits is uncontroverted. Gary Erichson, head of the Street Mainte*404nance Division, submitted affidavits on behalf of the City based on his personal knowledge about decisions he made.2 Erichson stated in the affidavits that he made the decision not to post warning signs or place barricades on streets that had been sanded and sealed after considering the following factors: the minimal public safety concerns associated with street sealing projects; traffic considerations that barricades or cones blocking large areas for up to a ten day period would create congestion and flow problems; social considerations that residents on sealed roads would be inconvenienced by barricades; and financial considerations that Street Maintenance’s limited funds would be required to hire and pay additional crews for posting and removing signs or barricades. Clearly, those considerations balance competing political, economic, and social concerns. Thus, absent some reason to believe that Erichson’s affidavits lack credibility, it is not clear what additional information is necessary to establish that a planning level decision was made. Certainly, the City could have provided additional information as to the details of the factors it considered, as well as how it analyzed them. For example, the City could have provided the specifics of the cost analysis it did or it could have provided detailed information about congestion and flow problems created. But unless there is a genuine issue of material fact as to whether the City actually made a policy decision or considered the factors it claims it considered, that additional information goes to the prohibited questions of whether the City made the best or the right policy decision.

Once the City asserted that it considered political, economic, and social considerations, it met its burden. At that point, the burden shifted to Conlin to rebut the City’s claim of immunity by creating a genuine issue of material fact as to whether a planning level decision regarding signs and barricades was actually made or whether the City actually considered the factors it says it did in making the decision. But Conlin provided no evidence creating any such genuine issue of material fact.

The court fears that allowing “minimal averments” to support a planning level decision creates a risk that professional or scientific decisions as well as nondecisions will be “bootstrapped into planning decisions and thus protected by statutory immunity.” The court implies that the City is “bootstrapping” a professional or scientific decision or perhaps a nondecision into a planning level decision to improperly claim statutory immunity. While the court’s fears may in some situations be legitimate, they are not a legitimate concern in this case. The evidence simply does not demonstrate “bootstrapping” on the part of the City. First, there is nothing to suggest that the considerations that went into the City’s decision not to post signs or barricades at the street sanding and sealing projects were based on professional or scientific judgments. Nor is there any evidence that supports the notion that the City is relying on a nondecision.

To establish that it was entitled to statutory immunity, the initial burden was on the City to prove that it made a planning level decision not to post warning signs or set up barricades for street sanding and sealing projects. Using Erichson’s affidavits along with other evidence in the record, the City met its initial burden, shifting to Conlin the burden to rebut the City’s claim for immunity. Conlin was unsuccessful in his rebuttal. Therefore, the dis*405trict court did not err in granting the City’s motion for summary judgment on this issue. As a matter of law, on the record presented, the City is entitled to statutory immunity.

. Notwithstanding the court's discussion of the court of appeals' holdings concerning de minimus costs and decisions having to be made by the city council, the court of appeals incorrectly decided those issues. Financial considerations associated with policy decisions need not involve more than an unspecified “de minimus’’ cost and statutory immunity does not protect only city council decisions.

. To be sufficient for summary judgment purposes, an affidavit must be made based on the affiant's personal knowledge, must set forth facts that would be admissible in evidence, and the affiant must be competent to testify about the matter. See Minn. R. Civ. P. 56.05; Corwine v. Crow Wing County, 309 Minn. 345, 361, 244 N.W.2d 482, 490 (1976).