Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
State of Minnesota,
CX-97-1987, C1-97-1988, C4-97-2049),
John Ernest Boudreau,
John David Gagnon, Jr.,
Leon Thomas Jackson,
Evelyn Joy Moore,
Craig Steven Jackson,
Tony Lee Libby,
Arthur James Vizenor,
Filed March 17, 1998
Affirmed in part and reversed in part
Toussaint, Chief Judge
Becker County District Court
File Nos. K7-97-0431, K3-97-622, K7-96-1228, KX-97-4,
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellant/respondent state)
Michael D. Fritz, Assistant Becker County Attorney, P. O. Box 743, Detroit Lakes, MN 56502 (for appellant respondent state)
Charles R. Segal, Zenas Baer & Associates, 331 6th Street, P. O. Box 249, Hawley, MN 56549 (for respondent and appellant defendants)
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Schumacher, Judge.
These consolidated appeals are from pretrial orders granting motions to dismiss for lack of subject matter jurisdiction and from judgments of conviction entered after similar motions were denied. This court consolidated the appeals after the supreme court decisions in State v. Stone, ___ N.W.2d ___ (Minn. Dec. 11, 1997) and State v. Jackson, 570 N.W.2d 503 (Minn. 1997). We affirm the judgments of conviction entered against appellants Boudreau (C7-97-1607) and Gagnon (C2-97-19535), affirm the pretrial dismissal orders in favor of respondents Libby (C8-97-1731), Moore (CX-97-1987), and Vizenor (C4-97-2049), and reverse the pretrial dismissal orders in favor of respondents Leon Jackson (C9-97-1866) and Craig Jackson (C1-97-1988).
Appellants Boudreau and Gagnon were charged with driving after cancellation of their drivers licenses as inimical to public safety, a gross misdemeanor offense. The trial court denied defense motions to dismiss and Boudreau pleaded guilty while Gagnon was found guilty after a trial based on stipulated facts.
Respondent Moore was charged with the misdemeanor offenses of failure to provide proof of insurance and allowing an unauthorized person to drive. The trial court granted her motion to dismiss for lack of subject matter jurisdiction.
Respondent Vizenor was charged with driving after revocation, a misdemeanor, and failure to stop at a stop sign. The trial court granted his motion to dismiss the driving after revocation charge on grounds of lack of subject matter jurisdiction.
Respondent Tony Libby was charged with fleeing a police officer, a gross misdemeanor, and with misdemeanor driving after cancellation. The trial court granted Libby's motion to dismiss the second count, but refused to dismiss the first count.
Respondents' Leon Jackson and Craig Jackson were charged with gross misdemeanor driving after cancellation. In the case of both these respondents the probable cause portion of the complaint states that the drivers license had been canceled as inimical to public safety. The charging portions of the complaints, however, cite Minn. Stat. § 171.04, subd. 1(8), cancellation for failure to deposit proof of financial responsibility. The trial court granted defense motions to dismiss the offenses for lack of subject matter jurisdiction but denied a motion to dismiss the charge against Leon Jackson of obstructing legal process. This appeal followed.
The United States Supreme Court has recognized that although Indian tribes retain attributes of sovereignty, state laws may be applied to tribal Indians on reservations if Congress grants a state authority to do so, as it has done in Public Law 280 for state criminal laws. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987). The basic test of state court jurisdiction on Indian reservations is
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub[lic] L[aw] 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub[lic] L[aw] 280 does not authorize its enforcement on an Indian reservation.
Id. at 209, 107 S. Ct. at 1088. Our supreme court, recognizing the inherent difficulty of determining what "conduct" the Cabazon test should focus on, has held that the focus should be on the broad conduct "unless the narrow conduct presents substantially different or heightened public policy concerns." State v. Stone, ___ N.W.2d ___ (Minn. Dec. 11, 1997) (slip op. at 7). The court defined "public policy" to refer to
protect[ing] society from serious breaches in the social fabric which threaten grave harm to persons or property.
Id. at 10.
The state concedes that the misdemeanor offenses charged against respondents Libby (driving after cancellation), Moore (failure to provide proof of insurance, allowing unauthorized person to drive) and Vizenor (driving after revocation) do not involve "heightened public policy concerns." The focus in these cases, therefore, is on the broad conduct of driving, which is generally permitted, and the offenses, under Cabazon, are civil/regulatory violations that cannot be enforced against those respondents.
The state argues that the gross misdemeanor offense of driving after cancellation as inimical to public safety charged against appellants Gagnon and Boudreau and respondents Leon Jackson and Craig Jackson is a criminal/prohibitory offense that can be enforced on the reservation under Cabazon. We agree.
The Stone court identified as one of the traffic laws that "presents substantially different or heightened public policy concerns," slip op. at 7, so as to allow a focus on the narrow conduct under Cabazon, the statute prohibiting drinking and driving. Id. at 9. In an opinion filed with Stone, the court held that the prohibition against underage consumption of alcohol also presented substantially different and heightened public policy concerns, and therefore was criminal/prohibitory and could be enforced on the reservation. State v. Robinson, ___ N.W.2d ___ (Minn. Dec. 11, 1997). This court has held that the state has jurisdiction to enforce the implied consent law and revoke the drivers license of a tribal member found driving while intoxicated on the reservation. Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757, 761 (Minn. App. 1996).
Driving in violation of a cancellation of one's license as "inimical to public safety" almost by definition involves substantially different or heightened public policy concerns." Moreover, drivers found "inimical to public safety" are generally those with multiple alcohol- or drug-related driving offenses. See Minn. R. 7503.1300, subpt. 2 (commissioner may cancel and deny drivers license to person with three DWIs in five years, or a total of four or more DWIs). Thus, there is a heightened public policy concern with the enforcement of "inimical to public safety" cancellations. It is the same as the concern identified in Stone, prohibiting drinking and driving , and it is further heightened by the fact that the drivers involved are habitual DWI offenders.
We conclude that the law against driving after cancellation as inimical to public safety is a criminal/prohibitory law that the state may enforce against tribal members for conduct occurring on the reservation. Appellants Boudreau and Gagnon were both convicted of driving after cancellation as inimical to public safety. Minn. Stat. § 171.24, subd. 5 (1996). Their convictions must be affirmed.
Respondents Leon Jackson and Craig Jackson were both charged under Minn. Stat. § 171.24, subd. 5 (1996). The state has not argued in its brief for reversal of the orders dismissing those charges. But the probable cause portion of the complaints against Leon Jackson and Craig Jackson state that their licenses were cancelled as inimical public safety. Although the charging portion of the complaint refers to a different statutory grounds for cancellation, that appears to be due to an error in the statute. That has since been corrected. See Minn. Stat. § 171.24, subd. 5(1) (1996) (referring to cancellation under section 171.04, subd. 1(8)-cancellation for no proof of insurance); cf. Minn. Stat. § 171.24, subd. 5(1) (Supp. 1997) (correcting citation to section 171.04, subd. 1(9)-cancellation as inimical to public safety). Accordingly, we reverse the pretrial orders dismissing the driving after cancellation charges against respondents Leon Jackson and Craig Jackson.
Affirmed in part (C7-97-1607, C8-97-1731, C2-97-1935, CX-97-1987, C4-97-2049), reversed in part (C9-97-1866, C1-97-1988).