IN COURT OF APPEALS
Paulette Pahnke, Individually and as Parent
and Natural Guardian of Brittany Newman,
Alyssa Newman and Michael Newman, Minors,
Home Apartment Development, LLC,
Filed September 12, 2006
Affirmed in part, appeal dismissed in part
Houston County District Court
File No. 28-C4-04-000130
William L. French,
Jeffrey A. Hanson, Hanson Law Firm, 119 Sixth Street Southwest, Suite B, Rochester, MN 55902 (for appellants)
Stephen G. Andersen, Ratwick Roszak & Maloney, P.A., 730 Second Avenue South, Suite 300, Minneapolis, MN 55402 (for respondent Anderson Moving and Storage)
Thomas A. Gilligan, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101-4919 (for respondent Home Apartment Development, LLC)
Dyan J. Ebert, James S. McAlpine, Quinlivan & Hughes, P.A., 400 First Street South, Suite 600, St. Cloud, MN 56301 (for respondents County of Houston, et. al.)
Jon K. Iverson, Susan M. Tindal, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondents City of La Crescent, et. al.)
Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.
S Y L L A B U S
Vicarious immunity protects a governmental employer from civil liability when its employee is immune from liability by virtue of the employee’s executing a court order by its exact terms.
O P I N I O N
Pahnke filed an action in district court alleging that law-enforcement officers
committed various torts by violating Minnesota Statutes section 504B.365 when
they executed a court order to remove her from an apartment that she was
renting and did not allow her 24 hours to vacate. The district court granted the officers’ request
for partial summary judgment based on official immunity, and it awarded partial
summary judgment to their employers,
In September 2002, Paulette Pahnke rented an apartment from Home Apartment Development, LLC. Pahnke already owed Home Apartment $1,100 in unpaid rent from a previous lease, an amount that she agreed to pay in monthly increments of $200. But Pahnke did not pay $200 in September, and she did not pay her rent in October or November.
Home Apartment brought an unlawful-detainer action against Pahnke, which the district court heard in November 2002. Because Pahnke could not pay her outstanding balance to redeem the property, the court announced that it would issue a writ of recovery of premises and an order to vacate, stayed for seven days. See Minn. Stat. § 504B.345, subd. 1(d) (2004) (“[U]pon a showing by the defendant that immediate restitution of the premises would work a substantial hardship upon the defendant or the defendant’s family, the court shall stay the writ of recovery of premises and order to vacate for a reasonable period, not to exceed seven days.”). The court expressly clarified that Pahnke had seven days to move.
Eight days later, Pahnke remained in the apartment, and the
district court signed the writ of recovery and order to vacate. The language of that writ is the flash point of
this dispute. It specifically “commanded
[the sheriff] that, taking with [him] the force of the county, if necessary, [he]
cause Paulette Pahnke to be immediately removed from the premises, and [Home
Apartment] to recover the premises.” See id.
§ 504B.361, subd. 1(c) (2004) (providing that writ of recovery may
state that the officer executing the order “cause [the tenant] to be
immediately removed from the premises”).
Pahnke alleges that she attempted to show Deputy Sass a tenants’ rights handbook that summarizes the law of eviction and to explain that he lacked authority to evict her immediately. The deputy testified in a deposition that because the writ and order expressly commanded removal “immediately,” he did not consider Pahnke’s handbook. Pahnke peacefully vacated the premises.
Pahnke brought this action in district court claiming violations
of federal and state law based on the eviction.
The defendants removed the action to federal district court, and the
federal court dismissed the federal claims and remanded the matter to
I. Does immunity protect law-enforcement officers and their employers from liability when the officers execute a judicial order according to the order’s exact terms?
II. Is denial of summary judgment on grounds of governmental immunity appealable when the district court based its denial on the existence of disputed material facts?
On Pahnke’s appeal from summary
judgment, this court asks whether there are genuine issues of material fact and
whether the district court erred in applying the law.
Whether to apply official
immunity is a question of law, which this court reviews de novo. Thompson v. City of
The specific conduct Pahnke complained
of is Deputy Sass’s order to leave her apartment immediately despite the fact that
Pahnke presented him with notice of what she urges is her statutory right to a
24-hour deadline for removal. The
district court found that both Sass
and Hargrove served the notice and removed Pahnke from the apartment, and Officer
Hargrove does not contend that this finding is erroneous. It is the immediacy of Pahnke’s removal by the
officers in keeping with the literal direction of the writ and order—not the
mere fact of removal—that gives rise to Pahnke’s cause of action. We must therefore decide whether Pahnke’s
immediate removal consistent with the express declaration of the writ and order
is the kind of discretionary act that warrants the protection of official
A nondiscretionary, ministerial
duty is one that is “absolute, certain, and imperative, involving merely the
execution of a specific duty arising from fixed and designated facts.”
We conclude that the officers’
duty was ministerial. Deputy Sass
considered Pahnke’s immediate removal to be a duty that was absolute, certain,
and imperative, rather than discretionary. The writ and order directed him to remove
Pahnke “immediately,” and he testified that, based on the language in the writ
and order, “I told her that the [writ and order] stated that she needed to
leave immediately. . . . Immediately is pretty self-explanatory to
me. It means right now.” The law obligates the sheriff—and in this case
these responding officers by delegation—to execute the district court’s writ
and order, which they interpreted to require immediate removal. See
On its face, Pahnke’s argument might be taken to admit that the officers had discretion regarding the timing of execution because she contends that the officers “could have taken any number of actions” while satisfying their duty. But Pahnke clarifies that “[t]he execution of this Writ did not require the use of discretion” and led to a ministerial act because it “leav[es] nothing to the discretion of the official.” This assertion, however, rests on her erroneous framing that “the real issue in this case is the apparent conflict between two statutes”—one that provides that an official executing a removal order shall demand that the tenant remove “within 24 hours,” and one that authorizes the official to “cause [the tenant] to be immediately removed from the premises.” Compare Minn. Stat. §§ 504B.365, subd. 1(a) (directing removal “within 24 hours”) with 504B.361, subd. 1(c) (authorizing removal “immediately”). The crux of Pahnke’s claim is that the officers erroneously interpreted two conflicting statutes that stand in what she calls “apparent conflict” with each other, and that the officers had a nondiscretionary, ministerial duty to execute the writ by ordering her removal within 24 hours.
Whether Pahnke is correct as a
matter of law that the officers did not comply with the duty to order removal
within 24 hours, or the respondents are correct that the officers did comply with
their duty to order immediate removal, the immunity analysis is the same. Ordinarily, it is noncompliance with a
ministerial duty that bars official immunity. See Anderson, 678 N.W.2d at 659-60 (discussing cases arising from alleged
failure to perform ministerial duty). But official immunity also does not shield an
official from liability for a claim that the official has tortiously complied with a ministerial duty. “The ministerial-conduct bar to official
immunity arises when . . . a ministerial duty was either not
performed or was performed negligently.”
We are similarly not persuaded
by respondents’ reliance on our decision in Johnson
v. County of Dakota, 510 N.W.2d 237 (
That official immunity does not protect the officers from liability does not end our consideration of whether their execution of the writ and order can subject them to liability. The district court also indicated that the officers should not be subjected to liability on the ground that they rendered their absolute obedience to the district court in executing its order. We agree.
Without dispute, the officers’
execution satisfied the literal language of the writ and order, and, despite
their alleged misunderstanding of the possible statutory deadline for the removal,
we conclude that the officers cannot be liable for their execution of the writ as
a matter of law. In a series of cases
dating back 130 years, the supreme court has recognized a form of immunity that
arises from an officer’s obedience in executing judicial papers that require
the officer to seize property or persons.
In a claim against a sheriff for executing a writ that was allegedly
jurisdictionally invalid, the court in 1876 determined that, because a writ
directing the seizure and sale of a debtor’s property “was regular on its face,”
it was “a full protection to the officer executing the process,” even if the authoring
justice of the peace lacked jurisdiction to execute the writ. Orr v. Box, 22
Twenty-one years later, the
supreme court declared that “[i]t is the imperative duty of a sheriff to
execute the process and orders of a court of competent jurisdiction.” Robinette v. Price, 214
Unquestioning obedience, without power or right to review or to revise, being the duty of the officer, he is afforded upon grounds of public policy a commensurate protection against personal liability for acts done in the performance of such duty. A sheriff is protected and justified for acts done in executing the process and orders of a court having jurisdiction of the subject matter when the process is regular on its face.
In each of these cases, the accused officer might have avoided the alleged wrongful execution had he looked beyond the judicial process into the law or underlying legal proceedings. Similarly here, even assuming Pahnke has accurately reconciled the two “apparent[ly] conflict[ing]” statutory provisions, the officers were not required to look beyond the face of the writ to interpret a common term that literally orders the officers to remove Pahnke immediately, rather than 24 hours later. The writ does not refer to section 504B.365 or otherwise offer any suggestion that the term “immediately” means “within 24 hours.” Like the officers in the Orr line of cases, Sass and Hargrove reasonably relied on the express direction of the court. Imposing liability would invite police second-guessing of judicial decrees. Rather, obeying the terms of execution affords an officer “a full and perfect defense.”
Pahnke asserts that the writ was not regular or valid on its face because its reference to “immediately” is not understandable “without reference to the controlling statute.” But deeming a writ “irregular” whenever one must look beyond it to discern the inapplicability of its plain terms would eviscerate the protection afforded to an officer by his reliance on a facially valid writ. Pahnke attempts to focus the immunity dispute on the interpretation of the two statutes, sections 504B.361, subdivision 1, and 504B.365, subdivision 1(a). This focus is misplaced. Pahnke first argues that the two statutes stand in “apparent conflict,” but at oral argument Pahnke’s counsel maintained that the two provisions unambiguously require an officer executing a writ to allow a tenant 24 hours to vacate. When read together, the statutes are facially unclear; one allows for immediate removal and the other for removal within 24 hours. Neither expressly defines “immediately,” and without limiting or clarifying language, section 305B.361 opens itself to the construction that “immediately” means instantly. See Black’s Law Dictionary 764 (8th ed. 2004) (defining “immediate” as “[o]ccurring without delay” and “instant”); see also American Heritage Dictionary 877 (4th ed. 2000) (defining “immediately” as “without delay” and “directly”). Pahnke urges that we reconcile the different temporal references by reading the two statutes together, so that the term “immediately” in section 504B.361, subdivision 1, is clarified by section 504B.365, subdivision 1, to mean “within 24 hours.” This statutory construction may be plausible, but it is not relevant to our immunity analysis as it regards execution of the writ.
The officers had an imperative duty to execute the writ, which was valid and clear on its face and issued by a court of competent jurisdiction, and they executed it on its explicit terms. See Minn. Stat. § 387.03 (requiring sheriffs to “execute all processes, writs, precepts, and orders issued or made by lawful authority”). The officers are therefore immune from tort liability for executing the writ in this manner.
Finally, Pahnke argues that
because she tried to give Deputy Sass a 1998 document entitled “Tenants’ Rights
Because the officers are
entitled to immunity, we agree that, as their employers, the county and city are
also entitled to vicarious immunity. Although
Extending immunity to a
governmental employer is a policy question, and when an employee is found to
have official immunity, claims against a municipal employer are generally
dismissed. Pletan v. Gaines, 494 N.W.2d 38, 42 (
The district court denied the county’s motion for summary judgment on the contract and promissory estoppel claims, concluding that “whether a contract existed and whether promissory estoppel is appropriate are [fact] questions for the jury.” The county challenges the denial, arguing that Pahnke failed to establish a factual basis for the claims.
appeal of the denial is not properly before us.
Although an order denying a motion for summary judgment based on
governmental immunity from suit is appealable,
D E C I S I O N
Deputy Sass and Officer Hargrove performed a ministerial function in executing
a court order directing Pahnke’s immediate removal from her apartment, the
officers are immune from civil liability because they executed the order
according to its facially valid terms.
Because the officers are immune from liability, their employers,
Affirmed in part, appeal dismissed in part.
 We do not address the respondents’ other non-immunity arguments made in support of summary judgment.