This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




William K. Avery,



John Greenham and Hennepin County,


Filed August 10, 1999


Parker, Judge[*]

Hennepin County District Court

File No. 98012170

Kenneth U. Udoibok, Jerrod M. Smith, Smith & Udoibok, P.A., 400 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for respondent)

Amy Klobuchar, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, 2000A Government Center, Minneapolis, MN 55487 (for appellants)

Considered and decided by Short, Presiding Judge, Harten, Judge, and Parker, Judge.



Respondent William Avery is a child support obligor. Appellants Hennepin County and John Greenham reported to the State of Minnesota that Avery was more than $22,000 past due in child support payments. Avery sued appellants, claiming that the report was incorrect, defamatory, and damaged his credit rating. Avery alleged a violation of the federal Fair Credit Reporting Act, defamation, negligence, and intentional infliction of emotional distress (IIED). The trial court granted summary judgment in favor of appellants on the defamation and Fair Credit Reporting Act claims. But the court denied summary judgment as to the claims of negligence and IIED. Appellants challenge this denial of summary judgment. We reverse the trial court as to the negligence and IIED claims, and order summary judgment to be entered in favor of appellants.


On appeal from a district court order denying a motion for summary judgment, the appellate court will review whether there are genuine issues of material fact and whether the district court erred as a matter of law. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847 (Minn. 1995). The applicability of an immunity defense is a question of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

Official immunity protects "a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong." Watson ex rel. Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996) (quoting Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991)). If official immunity protects a government employee from suit, the government entity will not be liable for its employee's torts. Watson, 553 N.W.2d at 414. The doctrine is designed to further the public interest by limiting judicial second-guessing of the acts of legislative or executive officials when a measure of discretion or judgment is called for. Id. Unlike statutory immunity, official immunity protects operational discretion and not just policymaking discretion, but the discretion involved with official immunity requires something more than the performance of mere "ministerial" duties. Id. An official's duty is ministerial when it is "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Id. (quotation omitted).

The starting point for analysis of an immunity question is identification of "the precise governmental conduct at issue." Watson, 553 N.W.2d at 415. The trial court reasoned that the governmental conduct at issue was the reporting of Avery's arrearages. And because county officials are required to report arrearages of more than $1,000, the trial court held this to be a ministerial act, not protected by official immunity. Appellants argue that the actual conduct at issue, the basis of Avery's alleged harm, is appellants' determination of how much in arrearages to report. We conclude that this argument has merit.

The issue at the heart of Avery's whole case is whether he does or does not owe more than $22,000 in child support. The record reflects a long-running dispute between the parties and the presence of conflicting information about the correct amount of the arrearages. It is clear that county officials had to weigh competing claims and evidence when determining the amount to report. We hold that appellants' actions in coming to a determination after weighing a number of variables is a discretionary act, similar to other government actions protected by official immunity. See, e.g., Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993) (social worker protected by official immunity when determining level of services to provide to protect her client from child abuse); S.L.D. v. Kranz, 498 N.W.2d 47, 52 (Minn. App. 1993) (granting official immunity because, although reporting neglect is mandatory, "[t]he task of deciding whether a particular allegation constitutes a report of neglect involves more than mere ministerial activity"), review denied (Minn. May 30, 1996).

Because the precise governmental conduct at issuedetermining the amount of Avery's child support arrearages to be reportedis discretionary and therefore subject to official immunity, we hold that the trial court erred in failing to grant summary judgment in favor of appellants on Avery's negligence and IIED claims.

Moreover, there is simply no genuine issue of ill will on the part of appellants. See Gleason v. Metropolitan Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997) (noting that official immunity applies when an official's actions were "legally reasonable" and taken with good faith), aff'd in part, 582 N.W.2d 216 (Minn. 1998). Appellants did continue to report Avery as $22,000 past due despite their knowledge of a Washington, D.C. court order stating that Avery's arrearages "are found to be zero." Avery argues that this is indicative of bad faith on the part of appellants. But this order was issued in 1996, three years after the Washington, D.C. court dismissed its version of the Avery case.[1] Given the questionable jurisdictional basis for the Washington, D.C. order, the existence of evidence indicating that Avery was $22,000 past due, and the presence of a federal mandate requiring the reporting of past-due child support payments, 42 U.S.C.A. § 666(a)(7) (West Supp. 1999), Avery has failed to demonstrate a prima facie case of bad faith on the part of appellants. Even if appellants' decision to report arrearages in the face of the court order were found to be in error, absent evidence of bad faith, Avery could not prevail on his intentional infliction of emotional distress claim. See Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983) (stating that IIED requires conduct that is "extreme and outrageous" or "utterly intolerable to a civilized community") (quotations omitted). Since we have concluded that the determination of the amount of arrearages and report of them by Avery were acts protected by immunity, he and Hennepin County are entitled to judgment as a matter of law and denial of summary judgment was error. We therefore reverse and direct that summary judgment be entered in favor of appellants on the remaining claims.


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

[1] In 1993, because Avery had moved to Maryland, appellant Hennepin County requested that the Washington, D.C. court dismiss the case.