This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


John P. Ebin, et al.,


The City of South Saint Paul, Minnesota,

Filed November 23, 1999
Toussaint, Chief Judge

Dakota County District Court
File No. C0967280

Bradley J. Gunn, Leonard Street & Deinard, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for respondents)

Allison Cavanaugh Swanson, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge and Forsberg, Judge.[*]

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant the City of South St. Paul (the city), seeks reversal of the district court's denial of summary judgment based on claims of statutory immunity and common law official immunity with regard to respondents' claims for tortious interference with contracts claim and legislative immunity and lack of subject matter jurisdiction over Lafayette's claim under 42 U.S.C. § 1983. Because (1) prior decisions have concluded that the city acted willfully, maliciously, knowingly contrary to established law, and without discretion, we affirm the district court's denial of appellant's assertions of official and statutory immunity; (2) legislative immunity does not extend to municipalities, we affirm the district court's denial of appellant's assertions of legislative immunity; and (3) state courts have general jurisdiction, we affirm the district court's rejection of appellant's jurisdiction defense.


John P. Ebin and Eileen M. Ebin, as trustees, and Lafayette Development Corporation (collectively "Lafayette"), own a 28-acre parcel of land located mostly in the city of Inver Grove Heights, but bordering on South St. Paul's southern city limits. The tract abuts two platted South St. Paul neighborhoods that are separated by a dedicated roadway, 18th Avenue South, a north-south street that represents the only means of direct access to Lafayette's property.

In November 1994, Inver Grove Heights approved Lafayette's plan to construct a 248-unit townhouse project on its property, provided Lafayette could obtain legal access to 18th Avenue South. After Lafayette notified South St. Paul of its intention to upgrade the partially improved end of the street, the city administrator sent a letter in April 1995 stating that the final 15 to 35 feet of 18th Avenue South were not open and that the city would not permit any public travel on that portion of the street. In July 1995, offering to pay for construction and maintenance costs, Lafayette formally requested that the city council acknowledge that 18th Avenue was open, or alternatively, open the roadway to allow Lafayette to remove a small section of curb and gutter to utilize its private access rights to 18th Avenue South. In September 1995, after a public hearing, the city council denied Lafayette's request for 18th Avenue South access, refused to permit Lafayette to use its private easement rights, and did not address Lafayette's request to acknowledge that the street was already open.

Following the city's denial of its request, Lafayette petitioned the Dakota County District Court to compel the city to acknowledge that 18th Avenue South was open. After a bench trial, the district court determined that the city's actions in denying Lafayette's request to open the road and prohibiting access or travel on 18th Avenue South were "flawed," "arbitrary and capricious," and "unlawful." The district court also found that: (1) 18th Avenue South had been open since 1995 up to Lafayette's property; (2) Lafayette had a constitutionally protected interest in having reasonably convenient and suitable access to 18th Avenue; and (3) Lafayette possessed a valid private access easement to its property. Additionally, finding that 18th Avenue South was already open, the district court held that the city had exercised no discretion and had no discretion to close an open street. Accordingly, the district court ordered the city to recognize that 18th Avenue South was open to Lafayette's property, to refrain from interfering with Lafayette's constitutional right of access, and to bring the right-of-way up to statutory standards. The district court's decision was affirmed on appeal. In re Request of Lafayette Dev. Corp., 567 N.W.2d 743, 746 (Minn. App. 1997), aff'd, 576 N.W.2d 740 (Minn. 1998) (hereinafter "Lafayette I").

The present action ("Lafayette II") was commenced to recover monetary damages Lafayette sustained as a result of the actions giving rise to Lafayette I.[1] Lafayette seeks damages based on claims that the city violated Minn. Stat. § 471.705 (1995) ("Minnesota Open Meeting Law") and 42 U.S.C. § 1983 by denying its petition to open and improve 18th Avenue South. Lafayette also claims that the city's actions effected a taking of its property and tortiously interfered with both existing and prospective contracts. In addition, Lafayette claims that the city was arbitrary and capricious in refusing its request for a driveway permit.

In December 1998 the city moved for summary judgment, claiming official, statutory, and legislative immunity, as well as a lack of subject matter jurisdiction. In February 1999, a second district court judge denied the city's motion for summary judgment with respect to Lafayette's claims for inverse condemnation and tortious interference with prospective contracts, and a claim that the city's actions were arbitrary and capricious. However, the second district court judge granted summary judgment on Lafayette's claims under the Minnesota Open Meeting Law, and § 1983 and for tortious interference with existing contract claims. In March 12, 1999, without additional briefing, the district court reinstated the § 1983 claim against the city. The city brought this interlocutory appeal from the rejection of its assertions of immunity and lack of jurisdiction.


Whether government action is protected by immunity is a question of law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996). We review de novo the denial of an immunity-based motion for summary judgment "because immunity from suit is effectively lost if a case is erroneously permitted to go to trial." Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996) (citation omitted) (on appeal from summary judgment, the reviewing court determines whether genuine issues of material fact exist and whether the district court erred in its application of the law (citing Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988)). An appellate court need not defer to the district court's determinations on legal questions. Edina Educ. Ass'n v. Board of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d 306, 310 (Minn. App. 1997)(citation omitted), review denied (Minn. June 11, 1997). In reviewing a denial of summary judgment on a claim of immunity, we presume the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).


Tortious Interference with Future Contracts Claim

Appellant argues that it is entitled to official immunity and statutory immunity from respondents' claims for tortious interference with contracts. Because the two types of immunity have different purposes, their protections are not coextensive.

[S]tatutory immunity protects what might be termed policy judgment (which may take into account competing policy factors), while [common law] official immunity protects more individual, professional judgment (wherein the judgment necessarily reflects the factors of a situation and a professional goal * * * ).

Janklow v. Minnesota Bd. of Examiners, 552 N.W.2d 711, 716 (Minn. 1996) (citations omitted). Courts have applied dichotomous tests to determine whether governmental action is protected by either form of immunity--"discretionary" versus "ministerial" conduct for official immunity, "planning" versus "operational" conduct for statutory immunity--that have been "subject to enigmatic application and occasional breakdown." Papenhausen v. Schoen, 268 N.W.2d 565, 571 (Minn. 1982). Courts caution that these distinctions are not conclusive and have granted immunity in situations where its application furthers the purposes of the immunity doctrines. See, e.g., Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988). Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996) (suggesting that courts should assess whether the grant of immunity comports with the purpose of the immunity doctrine);

Because both forms of immunity are exceptions to the general rule of liability, both are construed narrowly. Johnson v. Nicollet County, 387 N.W.2d 209, 211 (Minn. App. 1986) (official immunity); Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 121 (Minn. 1979) (statutory immunity). The party asserting immunity bears the burden of demonstrating facts entitling it to immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997); Waste Recovery Coop. v. County of Hennepin, 517 N.W.2d 329, 332 (Minn. 1994).

A. Common-Law Official Immunity

Whether a municipality or its officials are protected by official immunity is a legal question that appellate courts review de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Official immunity protects government employees who may be subject to liability in the course of performing their duties. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). Official immunity "primarily is intended to insure that the threat of potential liability does not unduly inhibit the exercise of discretion required of public officers in the discharge of their duties." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1988)); see Janklow, 552 N.W.2d at 715 (stating that official immunity is intended to protect public officials "from the fear of personal liability that might deter independent action" (quoting Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988)).

1. Only Available for Actions by an Individual Government Official

Official immunity only applies in situations involving the acts of an individual state official. Carter v. Peace Officers Standards & Training Bd., 558 N.W.2d 267, 271-72 (Minn. App. 1997) (citing Janklow, 552 N.W.2d at 716). Moreover, official immunity protects individuals and not a board acting in its joint capacity. Riedel v. Goodwin, 574 N.W.2d 753, 758 (Minn. App. 1998) (citing Janklow, 552 N.W.2d at 715), review denied (Minn. Apr. 30, 1998). However, the Minnesota Supreme Court has applied vicarious official immunity "when failure to grant it would focus `stifling attention' on the official's performance to the serious detriment of that performance." Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (quoting Olsen v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993)). It would create an anomaly to hold a government employer liable for the same conduct for which an individual official receives immunity. Watson, 553 N.W.2d at 415; Davis, 559 N.W.2d at 124 (mentioning in a footnote that vicarious liability may be extended to a governmental entity to prevent reprisals by that entity which may deter an official's independent judgment).

Since Janklow forecloses appellant's claim of official immunity for the joint actions of the city council, appellant contends it is entitled to "vicarious official immunity" through the potentially immunized independent investigation conducted by its city administrator. Respondent urges this court to strike appellant's argument as inconsistent with its argument to the district court that official immunity applies because the decisions of the city administrator, engineer, and council members are immunized. However, regardless of whether or not the city administrator acted alone, the grant of vicarious official immunity to a municipality must still comport with the objectives and rationale announced in the Janklow decision. Lafayette I determined that the actions were non-discretionary, willful, malicious, and knowingly contrary to established law. Therefore, denying immunity for such conduct does not threaten, deter, or focus "stifling attention" on the independent or professional judgment of any city employee or official and the rationale underlying official immunity, vicarious or otherwise, is simply not implicated.

2. Only Available for Discretionary Actions

Official immunity only protects acts by government officials that require the exercise of discretion. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998); Wiederholt, 581 N.W.2d at 315. Official immunity "involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of `ministerial' duties." Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). A specific duty arising from specific facts is ministerial. Wiederholt, 581 N.W.2d at 315-16; Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997) (explaining that there is no immunity for the execution of a specific duty arising from specific facts); Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976).

Since Lafayette I determined that the road was already open and the city had no discretion to close it, the city is not entitled to official immunity, vicarious or otherwise, for its actions denying Lafayette's petition regarding 18th Avenue South. Even if the city administrator conducted an independent investigation regarding the status of 18th Avenue South, such action was an unprotected ministerial duty because it arose solely from facts surrounding respondents' petition and only impacts Lafayette. Moreover, the city's actions also deprived Lafayette of its constitutionally protected and private easement rights of access. Since no Minnesota court has given a municipality the discretion to legislate such property rights out of existence, the city's actions were not discretionary and thus, not protected by official immunity

3. Not Available for Intentional, Willful, or Malicious Acts.

"[A] public official charged by law with duties which call for the exercise of discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong." Elwood, 423 N.W.2d at 677. Official immunity does not extend to a public official's intentional or malicious wrongdoing. Janklow, 552 N.W.2d at 716. An official acts willfully or maliciously when the official "intentionally commits an act that he or she has reason to believe is prohibited." Rico, 472 N.W.2d at 107 (explaining that the terms willful and malicious are synonymous in determining the availability of official immunity).

In denying the city's official immunity claim, the second district court relied on the findings in Lafayette I and found that the city acted willfully, maliciously and knowingly contrary to law. Moreover statements of city council members, the city's reliance on false and outdated findings of fact, and meetings held between city officials and neighbors without notice to respondents provide additional evidence that the city acted intentionally and maliciously in denying Lafayette's petition. Therefore, since it is well established that official immunity does not protect actions that are willful, malicious, and knowingly contrary to established law, the district court properly rejected the city's assertions official immunity claim.

In summary, we affirm the district court's denial of the city's defense of official immunity, including vicarious immunity to Lafayette's state tort claim because Lafayette I established that the city acted willfully, maliciously, knowingly contrary to established law, and without discretion in denying Lafayette's petition to open or improve 18th Avenue South.

B. Statutory Immunity

Whether a municipality or its officials are entitled to statutory immunity is a legal question that appellate courts review de novo. Johnson, 553 N.W.2d at 45. Statutory immunity derives from Minn. Stat. § 466.03, subd. 6 (1996), which grants local government entities immunity from tort liability for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Because the breadth of that language would undercut the Minnesota Tort Claims Act, courts have interpreted this provision narrowly in accordance with its purpose "to preserve the separation of powers by insulating executive and legislative policy decisions from judicial review through tort actions." Rico, 472 N.W.2d at 104 (citation omitted).

In determining whether statutory immunity applies, "[t]he underlying consideration is whether the conduct involves the balancing of public policy considerations * * * ." Pletan, 494 N.W.2d at 43-44; see Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994) (explaining that courts must examine the precise government conduct at issue to decide if statutory immunity applies). If a governmental decision involves the type of political, social and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the courts to second-guess such policy decisions. Steinke, 525 N.W.2d at 176; Nusbaum, 422 N.W.2d at 718. Moreover, where a government employee simply implements an established policy, the conduct may be protected because the challenge is, in effect, to the policy itself. Watson, 553 N.W.2d at 412 (summarizing precedent); Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988).

In this case, the precise government conduct at issue is the city's denial of Lafayette's 1995 request to open and improve 18th Avenue South. In denying statutory immunity, the district court stated that the city was involved in policy-making decisions requiring a balancing of social, political, and economic considerations. Although this finding may suggest the city is entitled to statutory immunity, the district court reasoned that this immunity is qualified and then discussed the doctrine of qualified immunity.[2] Nevertheless, Lafayette I established that 18th Avenue South was already open and that the city had no discretion to close it. Therefore, appellant is not entitled to statutory immunity because it did not exercise discretion or balance policy considerations regarding the status of 18th Avenue South.


42 U.S.C. § 1983

A. Legislative Immunity

Whether an immunity defense exists is a question of law subject to de novo review. Johnson, 553 N.W.2d at 45. The United States Supreme Court has consistently held that although individual government officials acting in the scope of legitimate legislative activities are entitled to legislative immunity in § 1983 actions, municipalities are liable for actions that implement or execute municipal policy or custom. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S. Ct. 1160, 1163 (1993) (stating that "unlike various government officials, municipalities do not enjoy immunity from suit--whether absolute or qualified--under § 1983"); Owen v. City of Independence, 445 U.S. 622, 651, 100 S. Ct. 1398, 1415 (1980) (denying municipalities immunity--otherwise "many victims of municipal malfeasance would be left remediless"; Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36 (1978). Similarly, the Eighth Circuit has held that a city council is not entitled to legislative immunity. Gorman Towers v. Bogoslavasky, 626 F.2d 607, 613 (8th Cir. 1980); see also Stone's Auto Mart, Inc. v. City of St. Paul, 721 F. Supp. 206, 208 (D. Minn. 1989).

Appellant nevertheless argues that Minnesota courts have extended legislative immunity to municipalities. In 1992, this court held, without an extensive discussion of the issue, that municipalities are entitled to immunity from liability when they act in their legislative capacity. Farrington v. City of Richfield, 488 N.W.2d 13, 16 (Minn. App. 1992). Actually, the Farrington court recognized that federal law controls the issue of immunity from federal causes of action and cited a federal case holding that individual city officials were immune, but did not discuss the issue of municipal legislative immunity.

However, the city's reliance on Farrington, is misplaced because the United States Supreme Court explained that "[m]unicipal defenses--including an assertion of sovereign immunity--to a federal right of action are, of course, controlled by federal law." Howlett v. Rose, 496 U.S. 356, 375-76, 110 S. Ct. 2430, 2442-43 (1990) (explaining that state law simply cannot create immunities for § 1983 claims not recognized by federal law and quoting Owen, 445 U.S. at 647 n. 30, 100 S. Ct. at 1413, n. 30 (1980)). Because the city does not have legislative immunity under controlling federal law any extension of such immunity under state law is unavailing. Therefore, we affirm the district court's denial of legislative immunity with regard to Lafayette's § 1983 claim. Moreover, caselaw is clear that municipalities do not enjoy the same legislative immunity as individual municipal officers and thus, this court does not address whether the city's actions were administrative or legislative.

B. Subject Matter Jurisdiction

Appellant challenges the district court's refusal to dismiss Lafayette's § 1983 claims for lack of subject matter jurisdiction. Appellant contends that respondents' § 1983 "takings" claim is not ripe and that their § 1983 procedural due process claim is moot. Whether subject matter jurisdiction exists is a question of law to be reviewed de novo. Edina Educ. Ass'n, 562 N.W.2d at 310.

(1) Ripeness

On the issue of ripeness, state and federal courts have concurrent jurisdiction over § 1983 claims. Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998). State courts have jurisdiction to hear federal takings claims. See, e.g., Spaeth v. City of Plymouth, 344 N.W.2d 815, 822 (Minn. 1984); McShane v. City of Faribault, 292 N.W.2d 253, 256-57 (Minn. 1980) (considering taking claim). State district courts are courts of general jurisdiction and subject matter jurisdiction is rarely an issue because of the broad jurisdiction of the court. Howlett, 496 U.S. at 378-79, 110 S. Ct. at 2444; 1 David F. Herr & Roger S. Haydock, Minnesota Practice, § 12.5 (1998); (explaining that United States Supreme Court compelled Florida state court to hear a § 1983 claim because it was a court of general jurisdiction and had concurrent jurisdiction with federal courts over such claims).

Nevertheless, relying on the United States Supreme Court decision in Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 101 S. Ct. 1908 (1985), appellant argues that a federal takings claim brought in federal court is not ripe until the governing body makes a final decision on the request or application and the party bringing the action has sought just compensation through available state court procedures. Appellant's argument that Lafayette must seek compensation from the state before bringing a claim in federal court is not applicable where the parties are in state court. Additionally, the policy of judicial economy, the rationale behind not splitting causes of action, and the risk of inconsistent results all weigh in favor of state courts of general jurisdiction hearing all related claims simultaneously.

However, relying on Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981), appellant also argues that although pre-deprivation process is ordinarily required, post-deprivation process may be constitutionally adequate if a plaintiff was deprived of property by "random and unauthorized" action. Parratt dealt with an inmate's § 1983 claim alleging that when the prison lost certain hobby materials it had deprived the inmate of property without due process of law. The rationale underlying Parratt is that deprivations of property effected through random and unauthorized conduct make pre-deprivation process impracticable since the state cannot know when such deprivations will occur. Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3202 (1984); Logan v. Zimmerman Brush Co., 455 U.S 422, 436, 102 S. Ct. 1148, 1158 (1982) (holding that post-deprivation process is inadequate unless there had been a "necessity of quick action by the State" or an "impracticability of providing any pre-deprivation process" especially where the only post-deprivation process is an independent tort action). Additionally, in situations where pre-deprivation process is possible, it should be provided regardless of the adequacy of any post-deprivation tort remedy. Zineron v. Burch, 494 U.S. 113, 124, 132, 138 n.20, 110 S. Ct. 975, 982, 986-7, 990 n.20 (1990).

Appellant's reliance on Parratt is misplaced because that case was overruled by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986). Nevertheless, Lafayette I established that the city's actions in refusing to open or improve 18th Avenue South or allow Lafayette to use its easement or constitutionally protected access rights were willful, malicious and knowingly contrary to established law and occurred two months after Lafayette's formal request. Therefore, the city's deliberate actions were not "random or unauthorized," or prompted by the "necessity for quick action." Additionally, although Parratt states that post-deprivation process may be sufficient where pre-deprivation process is impracticable or impossible, the city purported to provide pre-deprivation process by conducting a public meeting on Lafayette's petition. Therefore, because pre-deprivation process was neither impracticable nor impossible, Parratt simply does not extend to the present case and appellant's ripeness argument fails.

(2) Mootness

For the first time on appeal, appellant also argues that respondents' procedural due process claim is moot because Lafayette I was a mandamus action. Appellate courts strike arguments and theories that were not presented to the district court. McGoff v. AMCO Ins. Co., 575 N.W.2d 118, 119, n.1 (Minn. App. 1998), review denied (Minn. June 17, 1998). New arguments and theories are stricken because the scope of review on appeal is limited to issues and theories presented and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). Since appellant did not present this argument before the district court, this court does not address appellant's contention that respondents' § 1983 claims are rendered moot by an earlier mandamus action. Therefore, we affirm the district court's denial of appellant's summary judgment motion to dismiss respondents' § 1983 claims for lack of subject matter jurisdiction.


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

[1] Lafayette II also includes a challenge to the city's denial of Lafayette's request for a driveway permit in early 1996, which had not yet occurred at the time Lafayette I was commenced.

[2] It is unclear whether the district court intended to suggest appellant was entitled to immunity under the qualified immunity doctrine or simply that any available statutory immunity was qualified. On appeal, appellant contends that statutory immunity is not qualified and is absolute.