Hubert H. Humphrey III, Attorney General, Erica Jacobson, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2130 (for relator)

Mary E. Christenson, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for respondent Scott County)

Jon K. Iverson, Susan B. Rafferty, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th St., Minneapolis, MN 55431-4441 (for respondent City of Savage)

Considered and decided by Davies, Presiding Judge, Short, Judge, and Forsberg, Judge.[*]

The Commissioner of the Department of Human Rights appeals an administrative law judge's summary disposition of a complaint alleging disability discrimination by law enforcement officials. We reverse and remand.

In February 1993, Kathleen Schiffman failed to stop at the accident scene after colliding with a vehicle. A police officer quickly located her in the driveway of her house. She told the officer that she was hearing impaired and to understand him she required hearing aids (which she was wearing). Officer Brandt (of City) arrived and took custody of Schiffman and was told by the first officer about Schiffman's hearing difficulties. At first, Officer Brandt spoke louder than normal, thinking that it would make it easier for Schiffman to hear him, but Schiffman explained that it only hurt her ears and made understanding more difficult. Officer Brandt stated that he followed this advice as he drove to the jail and that Schiffman was able to engage in normal conversation with him from the back seat of the car.

At the Scott County Jail, Officer Brandt began to read the implied consent advisory. Schiffman claims that the noise and commotion in the jail made it impossible for her to understand, that she asked Brandt to reread it at least twice, and finally told him that she "gave up."

After reading the advisory, Officer Brandt and a county corrections officer made a telephone available. Although the officers offered to dial the telephone for her, they provided her no other accommodation. Schiffman argues that they should have either communicated for her or provided her with a specially equipped telephone.

Schiffman also alleges that she was discriminated against the next morning because no one woke her up when she did not hear the call for breakfast.

When Schiffman was released later that morning, she asked an officer to help her contact her 12-year-old daughter, who had been home alone during the night and was unaware of Schiffman's arrest. The officer refused to do so. Schiffman's request for assistance in calling a cab was also refused at first, but an officer called one after Schiffman began to cry.

Respondents claim that they accommodated Schiffman's disability as best they could. They note that most of the time she had no problem conversing with them and that her claimed "difficulty" in hearing/comprehension only arose when they started reading the implied consent advisory. It appears they suspected she was "malingering." They also point to police reports indicating that Schiffman at times cried and threatened suicide, physically resisted, threatened officers, yelled, and used profanity; they concluded this behavior was the result of her intoxication. Respondents state that they made numerous efforts to accommodate her, including leaving the cell door open so that she would not be claustrophobic and offering to drive to her house to inform her 12-year-old daughter of the situation.

An administrative law judge granted respondents' motions for summary disposition, holding that relator's claim was barred by the doctrine of official immunity. Relator challenges that decision. The ALJ denied respondent City's motion for summary disposition on the ground of collateral estoppel. The City filed a notice of review on that issue. By notice of review, both respondents also question whether the action was barred as untimely, an issue the ALJ declined to consider.

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.

Minn. R. Civ. P. 56.03.[1] On appeals from summary judgments, this court must consider two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is to be viewed in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993).

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

Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). The doctrine applies to claims under the Minnesota Human Rights Act. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). "Willful" and "malicious" are synonymous in the context of the doctrine, meaning "'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)).[2]

The main goal of the doctrine is to prevent the threat of personal liability from inhibiting public officials from exercising the discretion required in their jobs. Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1988). The doctrine applies only to "discretionary" acts by an official. Elwood, 423 N.W.2d at 677. To determine whether an act is discretionary, it is necessary to examine the "nature, quality, and complexity" of the decision-making process involved. See Williamson v. Cain, 310 Minn 59, 61, 245 N.W.2d 242, 244 (1976) (examining "nature, quality, and complexity of * * * decision-making process" in determining whether defendants' actions were discretionary or ministerial). If an action involves a balancing of policy objectives, it is protected by immunity; if it involves merely professional judgment, it is not. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 719-20 (Minn. 1988).

The conduct of the officers at issue here involved discretionary acts. Numerous policy objectives are involved in the decision on how to handle intoxicated arrestees. The officers' acts in dealing with Schiffman and her hearing disability were thus not simply ministerial. The doctrine of official immunity is generally applicable.

Schiffman has, however, advanced allegations sufficient to raise genuine issues of material fact as to the whether the officers willfully failed to make reasonable accommodation for her disability, conduct for which the officers would not be immune from liability. Summary disposition on the effect of the doctrine was thus not appropriate. We do not mean to reject respondents' arguments that Schiffman was being a particularly difficult arrestee and that the officers did the best they could in balancing various objectives; rather, we simply hold that the issue must be resolved by a fact-finder at trial instead of by use of summary disposition.

Collateral estoppel precludes relitigation of an issue decided in a prior case when the issue is identical to the issue determined in the prior adjudication. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 116 (Minn. 1991). The issues in these two proceedings are not identical. Collateral estoppel effect will not be accorded to administrative decisions when the issues in the later suit are not within the jurisdiction of the administrative tribunal. Clapper v. Budget Oil Co., 437 N.W.2d 722, 725-26 (Minn. App. 1989), review denied (Minn. June 9, 1989). As there is no dispute that the Department of Public Safety had no jurisdiction to consider relator's discrimination claim under the Act, the issues are not identical. We therefore hold that this element of collateral estoppel is not met.

Here, there was more than a 28-month delay from the time Schiffman filed her charge with relator to issuance of the probable cause determination. On remand, the ALJ should make findings as to whether respondents suffered prejudice from the delay such that relief would be appropriate.

Reversed and remanded.

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

[ ]¹ Respondents stated in their memorandum below that they accepted relator's version of the facts as true. Relator claims that, because of this concession, it was improper for the ALJ to consider reports by respondents' law enforcement officials. Those reports were attached as exhibits to an affidavit in the record. It is apparent that what respondents meant to stipulate to was the sequence of events and other bare facts. It is clear that they still relied on the statements in those reports and that the ALJ considered the reports, after noting that under the summary judgment standard there was no reason to limit the record. We may properly consider those reports as part of the record.

[ ]² There is no dispute that the officials involved in this case were aware that it is illegal to discriminate against persons with disabilities by failing to reasonably accommodate them in public services under the Act, and that Schiffman was such a person.