This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Margaret D. Bichsel,



State of Minnesota,


Ramsey County,


Filed September 30, 1997


Davies, Judge

Ramsey County District Court

File No. C09313987

Alf E. Sivertson, Michelle M. Barrette, Law Offices of Sivertson and Barrette, P.A., The Barrister Bldg., 1465 Arcade St., St. Paul, MN 55106-1723 (for respondent Bichsel)

Hubert H. Humphrey III, Attorney General, Sharon A. Lewis, Kristine Legler Kaplan, Assistant Attorneys General, 525 Park St., Suite 500, St. Paul, MN 55103 (for appellant)

Susan Gaertner, Ramsey County Attorney, C. David Dietz, Assistant County Attorney, 560 Ramsey County Government Center West, 50 Kellogg Blvd., St. Paul, MN 55101 (for defendant Ramsey County)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Foley, Judge.[*]



Appellant State of Minnesota challenges the district court's order denying summary judgment on the ground of official immunity. The state also seeks discretionary review of the order denying summary judgment on non-immunity grounds. We affirm the district court's denial of summary judgment on immunity grounds.


Respondent Margaret D. Bichsel is a former Ramsey County Juvenile Court law clerk. Bichsel claims that during her law clerk tenure supervisors and coworkers harassed her and created a hostile work environment after she repeatedly reported what she perceived as irregularities in the processing of juvenile court orders.

Bichsel first reported the harassment in February 1993. The district court administrator authorized an investigation; no harassment was found. Bichsel again complained of harassment and another investigation was ordered; again, no

harassment was found. Shortly thereafter, Bichsel was reassigned to another division within the district court. Rather than accept the transfer, Bichsel resigned in May 1993.

In December 1993, Bichsel, who was supervised by both state and county employees, brought suit against Ramsey County and the State of Minnesota on numerous grounds, including violation of the whistleblower statute. The county and state moved for dismissal. The district court dismissed Bichsel's claims in their entirety. Bichsel appealed, and this court reversed the district court's dismissal of several of the claims, including the whistleblower claim. Bichsel v. State, No. C1-95-240 (Minn. App. July 25, 1995).

On remand, and after extensive discovery, the county and state again moved for summary judgment on Bichsel's remaining claims, arguing, among other things, that the state and county were entitled to official and statutory immunity and that Bichsel had failed to establish an essential element of her whistleblower action. The district court denied the immunity claims and found that issues of material fact precluded summary judgment. The state now appeals the district court's denial of its official immunity claim. The state also requests discretionary review of the court's order denying summary judgment for failure to establish her whistleblower claim. Bichsel requests attorney fees and costs.

Denial of a motion for summary judgment based on governmental immunity is immediately appealable because immunity from suit "is effectively lost if a case is erroneously permitted to go to trial." Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). We need not defer to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The whistleblower statute provides that:

An employer shall not discharge, discipline, threaten,

otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

the employee * * * in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Minn. Stat. § 181.932, subd. 1 (1996).

On appeal, the state challenges the district court's ruling that it does not have

official immunity as to Bichsel's whistleblower claim. Under the official immunity doctrine,

a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.

Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976) (citations omitted). Official immunity is intended to protect "public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988).

A. Governmental Entity

In denying the motion for summary judgment, the district court concluded that official immunity did not apply because no public official or employee was named in this action. We disagree. A government employer defendant is entitled to vicarious official immunity if the threat of liability would defeat the purposes of official immunity. Leonzal v. Grogan, 516 N.W.2d 210, 214 (Minn. App. 1994), review denied (Minn. July 27, 1994). The purposes of immunity are defeated if the court must review the conduct of public officials to determine the liability of their employer. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992).

Bichsel's suit is based on actions taken by public officials who are county and state employees. Subjecting the state to liability for the actions of its officials requires an inquiry into the actions of the officials and would in the future inhibit such officials from exercising their independent professional judgment. If the state officials here are immune, the state is entitled to vicarious official immunity.

B. Discretionary Actions

Official immunity protects judgment or discretion that is exercised on an operational level. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996). It shields all official conduct not involving "ministerial acts." Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997), review denied (Minn. May 20, 1997). An act is ministerial if it is "absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (citation omitted).

In this instance, the decision by state personnel to transfer Bichsel was a decision involving judgment and discretion. The decision involved the weighing of many factors, including the complaints of the employee, the competing rights of other employees, and the overall needs of the court.


Official immunity does not, however, protect a public official who commits "a malicious or willful wrong." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn. 1994). In the context of official immunity, "malice `means nothing more than the intentional doing of a wrongful act without legal justification or excuse.'" Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)).

Here, Bichsel alleges that state supervisors Juvenile Court Judge Bertrand Poritsky and District Court Administrator Susan Alliegro retaliated against her because of her reports of illegal activities within the juvenile court. The evidence needed by Bichsel to sustain this whistleblower claim is essentially the same evidence needed to show malice. This court has determined that when

the elements required to sustain an underlying claim are substantially similar to those required for proof of malice or willfulness in the context of official immunity and the plaintiff has successfully overcome a motion for summary judgment on those underlying claims, the doctrine of official immunity cannot operate to bar suit or liability.

Davis, 559 N.W.2d at 123-24.

This court earlier concluded that Bichsel met the terms of the whisleblower statute in that her allegations stated suspected rules violations, she raised public policy concerns, and she reported the alleged violations. Bichsel, unpub. op. at 10-11. This court also found that Bichsel had raised a material issue of fact as to whether retaliation had occurred. Id. at 11. This finding was reiterated by the district court in its recent ruling that issues of material fact precluded summary judgment. Because Bichsel has successfully overcome a motion for summary judgment on her whistleblower claim, the state is not entitled to summary judgment based on official immunity.

Discretionary review of the district court's order denying summary judgment on non-immunity grounds is not justified here, and we, therefore, do not address the state's argument that Bichsel failed to establish an essential element of her whistleblower action. See Larson v. New Richland Care Center, 538 N.W.2d 915, 919 (Minn. App. 1995) ("Discretionary review is justified if reversal would obviate all proceedings in the district court and if the ruling involves a legal issue of broad application."), review denied (Minn. Mar. 4, 1997). Bichsel's request for attorney fees and costs is denied.


[ ]** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, §10.