This opinion will be unpublished and

may not be cited except as provided by

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




Peter Lawrence Jensen, et al.,



State of Minnesota, et al.,


Filed February 17, 1998


Harten, Judge

Ramsey County District Court

File No. C1-96-10126

Steven M. Fuller, Thomas S. Kuesel, Kief, Fuller, Baer & Wallner, 514 America Avenue, P.O. Box 880, Bemidji, MN 55619-0880 (for respondents)

Hubert H. Humphrey, III, Attorney General, Thomas M. O'Hern, Jr., Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for appellants)

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



The Minnesota Department of Natural Resources (DNR) appeals the district court's denial of its motion for summary judgment on the issue of whether the DNR was entitled to official immunity on employees' whistleblower claims. We affirm.


Appellant DNR employs respondents Peter Jensen, Curtis Rossow, and Paul Hoppe as conservation officers. From 1992 to 1996, Scott Fildes supervised respondents. During that time, Fildes reported to Region III supervisor Jerry Englebrecht.

In 1996, respondents filed a complaint against the DNR alleging a violation of the whistleblower statute, Minn. Stat. § 181.932. Respondents alleged that Fildes directed them to meet certain citation issuance quotas in violation of Minn. Stat. § 84.0285, and that they reported the directive to DNR management. Respondents further alleged that the DNR through its agents threatened adverse employment consequences as a result of their reports, including:

1. Fildes told Jensen, "If a few of the things don't improve in Hinckley, as far as your arrests, I will see that that station is closed and then you are going to be fired."

2. In response to Hoppe's refusal to "participate willingly to the quota," Fildes told Hoppe, "[h]e was going to be eliminated" and threatened him with the loss of overtime.

3. In October of 1993, Fildes "expressly threatened to close [Rossow's] station" and "get [Rossow] fired" if he did not make more arrests. In December 1994, Englebrecht told Rossow that "if [he] didn't stop [complaining about Fildes], [Rossow's] job was going to be threatened, [he] may lose [his] job" and that continued complaining was "not like shooting yourself in the foot, it's more like shooting yourself in the head."

Respondents also alleged numerous other incidents of unfavorable treatment after they reported the illegal quota directive.

The DNR moved for summary judgment, arguing that (1) Minn. Stat. § 84.0285 is not intended to protect the general public; (2) respondents are not entitled to protection under the whistleblower statute because another DNR employee "blew the whistle" on the illegal quotas before respondents; (3) respondents are not neutral whistleblowers entitled to the statute's protection; (4) respondents failed to show any retaliatory action by the DNR; and (5) the DNR is entitled to vicarious official immunity. The district court denied the DNR's motion for summary judgment, finding that there were genuine issues of material fact precluding summary judgment on respondents' whistleblower claims and that the DNR had failed to establish that it was entitled to official immunity as a matter of law.

The DNR appealed as a matter of right on the official immunity issue. The DNR also petitioned for discretionary review of the remaining whistleblower issues, which petition this court denied. Despite the denial of discretionary review for non-immunity issues, the DNR argued the same non-immunity issues in its briefs and at oral argument. Respondents therefore request an award of attorney fees against the DNR under Minn. Stat. § 549.21 for including the non-immunity issues in its appeal.


On appeal from an order denying summary judgment, this court must determine (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In determining whether a genuine issue of material fact exists precluding summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Ostendorf v. Kenyon, 347 N.W.2d 834, 836 (Minn. App. 1984). A defendant seeking immunity from suit bears the burden to allege sufficient facts to enable the court to conclude as a matter of law that immunity applies. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

1. Official Immunity

The DNR argues that it is entitled to official immunity on respondents' whistleblower claims because the actions of the DNR officials were discretionary and without malice. In so arguing, however, the DNR ignores the well-established principle that factual disputes at the summary judgment stage must be resolved in favor of the non-moving party.

Official immunity protects individual public officials from personal liability for actions committed in the course of any official duties that call for the exercise of professional judgment or discretion. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988). An employer is entitled to share an individual's official immunity by way of vicarious official immunity if public policy thereby is served. Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993).

Official immunity does not, however, protect actions taken willfully or with malice. Janklow v. Minnesota Bd. of Exam'rs for Nursing Home Adm'rs, 552 N.W.2d 711, 716 (Minn. 1996). Malice for purposes of official immunity "means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citation omitted).

Respondents allege that Fildes and other DNR officials threatened them with loss of overtime income, closure of their duty stations, and termination, in retaliation for their complaints about the imposition of illegal citation quotas. Respondents testified in their depositions that DNR officials directly or indirectly referenced respondents' complaints about the citation quotas when threatening them with termination. The DNR argues that all actions of its management were reasonable and taken in good faith.

The question of whether the DNR officials' actions were justifiable and taken in good faith or were retaliatory and malicious presents contested factual issues. Accordingly, the DNR is not entitled to summary judgment as a matter of law.

2. Attorney Fees

Respondents request an award of appellate attorney fees under Minn. Stat. § 549.21 (1996)[1] because appellants briefed and argued non-immunity issues in this appeal despite this court's denial of discretionary review of non-immunity issues. Appellants argue that because the immunity and non-immunity issues are inextricably intertwined, some overlap was inevitable. While we have considerable doubt about the validity of appellants' argument, appellant's position is not clearly within the causes for sanctions under section 549.21, subd. 2. Accordingly, we decline to award attorney fees to respondents as requested.


[1] Minn. Stat. § 549.21 (1996) was repealed by 1997 Minn. Laws ch. 213, art. 2, § 6, effective August 1, 1997. It was replaced by Minn. Stat. § 549.211 (Supp. 1997). Nevertheless, pursuant to Minn. Stat. § 645.35 (1996) (repeal of law not to affect right accrued or penalty incurred thereunder), the repealed § 549.21 applies to respondent's attorney fees claim.