Finding a Useful Path Through the Immunity Thicket


“Discretion” is a deceptively simple word on which hangs much of the difference between actions for which a Minnesota official will or will not enjoy immunity from tort
liability, whether by statute or common law.

by Michael K. Jordan

Anyone who has ever attempted to negotiate the thicket of cases on the discretion exercised under statutory and common law official immunity in Minnesota is often left feeling lost in a tangle of jargon and inconsistent application of precedent. The Minnesota Supreme Court has added to the confusion and recently acknowledged that in the past it “conflated statutory immunity and common law official immunity standards in analyzing a common law official immunity issue.”1 In other words, the Court seems to have been confused by its own decisions. Implicit in this frank acknowledgment, however, is the belief that there exist two distinct lines of analysis differentiating the discretion that triggers the application of statutory immunity from that which triggers common law official immunity. Some might argue this distinction never existed and the decisions reflect a result-oriented jurisprudence masquerading as a coherent theory. However, notwithstanding the difficulty in harmonizing the cases in this area, there does appear to be a path through this thicket that is governed by reason and policy rather than desired results. The difficulty in discerning this path arises from the use of the same term (discretion) in different contexts. Moreover, the terms professional judgment and discretion are used by the Court in ways that appear to be contradictory or are confusing.

As is usually the case, the path to enlightenment on this topic begins with a clear understanding of the rules and principles governing the journey. In this instance it requires a basic understanding of the sources of immunity in Minnesota and the policies undergirding each source. One must also understand the distinction between discretion in policy making and discretion exercised by professionals in implementing policy. With an understanding of how the Court has addressed these issues, the journey does not become an easy one, but it is a little less frightful.

Sovereign Immunity: Origin and Mutation

Sovereign immunity from tort actions originated in the maxim that “the King can do no wrong”:

This idea was adopted by the various state common law courts and applied to the states as sovereign. Thus sovereign immunity, as developed in the states and Minnesota in particular, was created by the common law courts. However, there was an obvious tension between the idea of representative government and the exercise of royal prerogatives by state governments. In effect, sovereign immunity exempted governments from the principle that in a civilized society everyone must answer for the harms they cause.

Recognizing this inconsistency, many state courts began to abolish governmental immunity from torts and offered their legislatures the opportunity to regulate by statute suits against state and local governments. Generally, the state legislatures endorsed the rule that tort actions could be brought against the state to recover for personal injury and loss of property caused by governmental entities. There were, however, exceptions. The most relevant one is the exclusion for losses caused by the performance of a discretionary function.3

The Minnesota Supreme Court followed this judicial trend when it abolished state immunity as well as the immunity of school districts, municipal corporations, and other subdivisions of government. Given the significant change in the law and the need for governmental entities to adapt to this new legal climate, the new rule was applied prospectively and the Legislature was given time to address the issue by establishing an orderly procedure for bringing actions against state and local governments.4

Thus, the tort immunity landscape we traverse today is shaped by both the Supreme Court’s decision to abolish immunity and the legislative response found in Minn. Stat. §§3.736 and 466.02. Both sections establish the general rule of government liability for losses to property or injury to persons caused by employees of the state (§3.736) and municipalities (§466.02). Moreover, the term “state” has a specific statutory meaning that is found in §3.732 subd. 1(1) and is broad in scope. Similarly, §466.01 subd.1 defines the term “municipality.” Both statutes exclude liability for performance or failure to perform a discretionary function or duty. Those exclusions are found in §3.736 subd.3d(b) and §466.03 subd.6. Although the wording of the two provisions is not exactly the same, the Supreme Court has construed them as offering immunity for the same type of decision making and conduct.5

Another source of immunity exists for government employees. There still exists a common law as opposed to a statutory immunity. Common law official immunity is applicable if a public official is charged by law with duties which call for the exercise of judgment or discretion. The official is not personally liable to a plaintiff for damages caused while discharging official duties unless the official is guilty of a willful or malicious wrong.6  Moreover, a finding of common law immunity may lead to vicarious immunity for the governmental entity that employs the official whose conduct is found to be immune.7  Now, here is where the confusion can start to take hold. The term “discretion” is used in the context of both statutory and official immunity. Does this mean that “discretion” has the same meaning in both contexts? Is it simply whether, as Webster’s dictionary suggests, the individual has the power to exercise judgment in making decisions? To answer these questions, it is necessary to examine how this term is used in the statute and under the common law doctrine.

Discretion Under the Statutes

At the outset, some helpful principles clearly emerge from the cases examining statutory discretion. The discretionary function exception grew out of concern over the effect lawsuits would have on the doctrine of separation of powers. This doctrine holds that when government power is concentrated in one branch of government, corruption and tyranny will invariably ensue. Power is, therefore, dispersed among the three branches of government and is exercised within the constitutionally defined perimeter of each branch’s area of expertise. The constitution assigns to the legislative and executive branches responsibility for resolving policy issues through the political process. Discretionary immunity prevents the usurpation of this responsibility by the judiciary.

For example, deciding the type and length of treatment needed to rehabilitate a juvenile arsonist involves a complex balancing of many factors. The decision maker must consider the protection of the public, the physical and psychological needs of the juvenile, the need to reintegrate the juvenile into the community, as well as any government policy concerning preferred types of detention for the juvenile. Assume a juvenile is released after these factors are considered and he sets a fire that kills someone and injures another. Should the state be immune from suit over the death and injuries which arguably are traceable to the decision to release the juvenile? Yes, the state should be immune because it exercised the type of discretion contemplated by the Legislature when it passed the statute.8 

The distinction is not simply that judgment is exercised. If that were the case, virtually all decisions would be covered by the exception as they all involve the exercise of some type of judgment. Rather the key is that judgment is used in the context of a decision-making process that involves the balancing of economic, political and social factors to create social policy. If courts were allowed to disrupt this process by subjecting it to judicial scrutiny (second guessing), the judiciary — not the executive or legislative branch — would be formulating policy, and this would violate the separation of powers doctrine.9

Not all decisions are policy-making decisions. Policy-making or discretionary action can be distinguished from conduct at the operational level which is not immune. While it is tempting to define operational level decision making as all nondiscretionary decision making, unfortunately it is not that simple. There may be some operational non-policy-making decisions that appear not to be immune, but which upon closer examination need to be immune for reasons that are rooted in the separation of powers doctrine. The Court probes for these types of cases by focusing upon two considerations. First, can the exception be narrowly construed? This requires close scrutiny of any assertion of immunity to guard against the possibility that the exception will swallow the rule. This danger is further guarded against by always focusing upon the legislative intent (the second consideration) behind the statute. The key question is whether the Legislature intended that the particular type of behavior being challenged should be immune. These concerns are addressed by keeping in mind the policy-making/operational distinction as well as weighing whether a decision finding the conduct to be subject to suit would undermine the separation of powers principle.10 

Now let’s see how this analytical process operates in action. The result may seem contradictory, but upon closer inspection makes sense.

In Nusbaum v. County of Blue Earth and State of Minnesota, 422 N.W.2d 713 (1988) the plaintiff argued that the state should be liable for injuries he suffered due to the failure of its traffic engineers to post a new speed limit sign at the end of a restricted speed zone. The conduct of the engineers was in conformity with a state policy embodied in the state traffic sign manual. On its face, the engineers’ conduct was operational and not immune. They were not balancing social, economic and political factors, but were mechanically following a policy decision enumerated in the manual. However, given the specific context in which the challenge was presented, the plaintiff was in effect questioning the policy which the engineers followed. If the Court allowed the suit to proceed it would nullify the policy choice made by another branch of government which would be a clear violation of the separation of powers doctrine. A word of caution is appropriate here. The Court underscored its view that the conduct of the engineers amounted to nothing more than an almost wooden application of the state policy and did not interpret or amend the policy in anyway. Had the engineers done so, a different result might have ensued.

The next area of concern is the relationship between the statutory discretion exception and professional discretion exercised by employees working for the state and implementing state policies and rules. We commonly think of professionals as highly trained individuals who exercise their judgment in evaluating problems and finding solutions. The question then is whether this kind of professional discretion is the same as statutory discretion. The answer is a definite maybe! Professional discretion is not necessarily the discretion that the Legislature intended to protect. Remember statutory discretion is rooted in the separation of powers doctrine and the policy-making function of the executive and legislative branches. Professionals certainly make decisions that affect and implement policy. Indeed it can be argued that professionals make policy choices during the course of their professional practice. This, however, does not automatically confer immunity. The important policy choice for purposes of the statute is public policy.        

The confusion in distinguishing professional policy from public policy is understandable. Professionals frequently must sift through a maze of competing scientific or technical considerations that guide their decision-making process. These choices, no matter how significant they are to the professional and even society, are questions to be resolved by the profession using its own standards of validation. Resolution of these issues is binding upon the professional and guides the discretion exercised by members of the profession. Now, compare this with public policy decision making. The selection made among competing policies is binding upon all citizens and is validated through the political process, which is not known for its scientific or rational attributes. Immunity was intended to protect the latter process, not the former.11

For example, a county’s decision to provide a public facility to treat mentally ill patients represents a public policy choice. This policy is implemented by hiring a professional staff to treat mentally ill patients. As part of their responsibilities, the professional staff make decisions about whether persons should be hospitalized and/or treated with medication. Treatment decisions of this nature clearly involve the analysis of many factors pursuant to standards developed by the health care profession. Invariably these standards are based upon scientific research and the interpretation of data and these standards guide the professional’s use of discretion. What happens if someone challenges the professional’s decision not to hospitalize a person seeking treatment for depression and the depressed person commits suicide? In Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn. 1997), the Court viewed this decision as not falling within the discretion exception. The professional’s decision represented the exercise of professional discretion at the operational level to implement the initial policy choice made by the county to provide a treatment facility.12 The hospitalization decision was nothing more than the application of technical knowledge governed by the standards and procedures controlled by the profession, not the state.

Change the facts slightly and the result may be different. Suppose instead of making a policy decision merely to establish a facility, the county also endorses the idea that outpatient treatment should be preferred over inpatient treatment. In this scenario the conduct of the professional may be immune because the treatment decision arguably was significantly controlled by the state policy rather than professional discretion alone. A challenge to the decision to release is in fact a challenge to the county policy preference and that policy was arrived at through the political process, not the deliberative process governing professional decision making.13

Common Law Official Immunity

The driving force behind common law official immunity is not the separation of powers doctrine but the need to diminish the fear of personal liability that might deter independent action by officials or impair the performance of their duties. Public officials who are charged by law with duties calling for the exercise of judgment or discretion are not personally liable for damages unless they are guilty of a willful or malicious wrong, that is, unless they intentionally commit an act that they have reason to believe is prohibited.14

Notice how the protection is rooted in carrying out duties. This points to the major difference between discretion under statutory immunity and official immunity. Official immunity discretion is exercised at the operational level rather than the policy-making level. In addition, there are distinctions that need to be made between types of operational level behavior. The Court distinguishes between the exercise of discretionary conduct at the operational level, which is protected, and the performance of a ministerial duty, which occurs at the operational behavior but is not protected. Ministerial duty has been described as a duty which is absolute or certain and arises out of fixed and designated facts.15  The existence of some degree of discretion will not automatically confer immunity on an official. The focus must be on the nature of the act at issue. What then must be the nature of the act to qualify for immunity?

The complexity of the decision-making process governing the actor’s behavior appears to be a significant factor in determining if the conduct is immune. The Court has described this process as an individual exercising professional judgment based upon situational factors which are assessed to achieve a “professional goal.”16 Exactly what this means is not clear and the Court has been rather forthright in acknowledging that the law in this area is filled with terms that are used inconsistently and often applied in a confusing manner.17 However, official immunity is a bridge between legislative or executive policy making and the application of those policies to the myriad of situations that cannot be enumerated in a statute or policy statement.

As previously noted, professionals are highly trained individuals who analyze problems in their area of expertise and find solutions by applying methodologies peculiar to their area of training and expertise. Thus, police officers who decide to engage in a high-speed chase or assess whether probable cause and exigent circumstances exist represent this bridge between the policies and laws addressing the safety and rights of citizens and the application of these laws and policies to situations which could not have been envisioned by the Legislature.18

Notice how official immunity dovetails with the statutory discretion exception. The statute protects the political process from judicial second guessing. Official immunity focuses more on what will inevitably flow from that process: policy choices that may not have a high degree of specificity but establish the outer perimeter of choices to be made by implementing officials. These officials need some measure of flexibility in performing essential functions that are not defined with a high degree of specificity. If the Legislature or the Executive Branch does provide that specificity, the task is ministerial and not immune.

In addition to finding the exercise of professional discretion to be critical in determining the question of official immunity, the Court suggested that the policy-making/operational distinction used in statutory immunity cases was also appropriately considered in official immunity cases. In Larson v. Independent School District 314, 289 N.W.2d. 112 (Minn.1980) a school teacher was sued for injuries suffered by a student when the teacher was alleged to have negligently assisted a student perform a gymnastic exercise. The Court found that official immunity did not apply, but the analysis was similar if not the same as that used in statutory immunity. The teacher’s decision regarding how to assist the student was considered ministerial because it did not involve any policy-making or planning level activity. In effect, the Court used official immunity language (ministerial) to denote its decision but applied statutory immunity analysis (policy making) to reach its conclusion. While this approach has some appeal in that one test was available for both statutory and official immunity, the Court in Anderson v. Anoka Hennepin Independent School District 11, 678 N. W.2d. 651 (2004) said this approach erroneously conflated the two standards. Whether the individual was engaged in policy making remains a relevant question under statutory immunity but irrelevant under official immunity. Anderson, however, did adopt another principle from statutory immunity and applied it to official immunity.

Anderson involved an action brought by a parent against a wood shop teacher after the parent’s son lost a finger while using a power saw. The blade guard was disengaged in favor of using a different method for the task the student was performing. The teacher asserted official immunity but he could not point to a specific discretionary act to which the immunity could attach. The Court characterized his conduct as ministerial because his decision not to use the blade guard was nothing more than the implementation of a policy adopted by the department and the policy did not require the use of a blade guard. Thus, the policy represented the opinion of the teachers (professionals) who formulated the policy that their approach represented the best way to safely use the saw. The defendant teacher, however, did not formulate the policy; he merely followed it. Even though the shop teacher’s action was not discretionary, the adoption of the policy by the department was a discretionary act covered by official immunity. The parent in challenging the action of the teacher was essentially challenging the department policy.19 As stated previously, the Court has held that in the context of statutory immunity the discretionary function exception will protect the governmental entity if the actor was not engaged in policy making but was simply implementing a legislative policy. A challenge to the conduct amounts to an attack upon the policy. The Court saw no reason why it should not apply this same approach to official immunity. Thus, the teacher did not forfeit his official immunity if his ministerial conduct was required by a policy established through the exercise of discretion that was itself covered by official immunity.

Conclusion

The path through the cases starts with knowing where we wish to end. What the Court has attempted to do in this area is to meet that goal by emphasizing the general principles undergirding the immunity cases. In fairness to the Court, what may appear as result-oriented reasoning is in fact an attempt to be true to its concern for the importance of the separation of powers doctrine. This doctrine reserves important legislative and executive policy decisions for the political rather than the judicial process. Thus, policy decisions arrived at through the political process are immune. The use of professional discretion in implementing these decisions is not necessarily immune under the statutes unless the person implementing the policy was engaged in behavior that was mandated by the statute. Attacking that behavior is an attack on the policy which in turn is judicial second guessing of decisions reserved for the political process.

However, common law official immunity does provide an extra layer of protection for officials who must exercise their discretion in situations where, out of necessity, the application of policy to facts occurs in a myriad of ways and cannot be fully explicated by the legislative or executive branches. The discretion exercised in this case is not governed by a private group of individuals who develop standards to govern their own behavior. Official discretion is exercised in the gap that exists between theory and practice, policy and implementation. The Legislature has the option of eliminating this gap by reducing the duties of officials to the performance of ministerial functions, that is, explicating behavior and actions in detail such that little judgment is left to the official. This is possible but not practical in many instances. So the gap is filled with the discretion of individuals who are professionals in blending policy with action. This does not frustrate legislative or executive intentions, it implements them and immunity provides them with enough breathing space to perform this difficult task.

The Court’s case-by-case approach will always lead to many cases that are seemingly inconsistent and indeed the decisions may not be totally consistent. The ultimate test though is not whether every case can be harmonized. It is whether the decisions provide us with a goal and a consistent sense of direction. We may hope this brief explication demonstrates that the Court has done just that.

Notes
1 Anderson v. Anoka Hennepin Independent School District 11, 678 N. W.2d 651, 656 Fn.5 (2004).

2 Nieting v. Blondell, 306 Minn. 122, 125, 235 N. W.2d 597, 599 (1975).

3 See generally Spanel v. Mounds View School District No.621, 264 Minn. 279, 118 N. W.2d 795 (1962) (summarizing history of immunity and reviewing state court decisions abolishing immunity).

4 See Nieting, 235 N. W.2d at 603; Spanel, 118 N. W.2d at 803.

5 See Terwilliger v. Hennepin County, 561 N. W.2d 909, 912 (Minn. 1997)(in deciding whether discretion was exercised under §466.03 subd. 6 the Court is guided by its prior cases interpreting similar statutory language in the State Tort Claims Act §3.736 subd. 3(b).

6 Pletan v. Gaines, 494 N. W.2d 38, 40 (1992).

7 Pletan, 494 N.W. 2d at 42.

8 Cairl v. State of Minnesota, 323 N. W. 2d 20, 23-24 (1982).

9 Holmquist v. State of Minnesota, 425 N. W.2d 230, 231-232 (1988).

10 See Johnson v. State of Minnesota, 553 N. W.2d 40, 46 (1996); Nusbaum v. County of Blue Earth, 422 N. W. 2d 713, 719 (1988).

11 See Holmquist, 425 N. W.2d at 232-233 (“That public policy decisions and professional decisions involved in carrying out settled policies have in common the evaluation of complex and competing factors cannot be gainsaid. It is, however, the evaluation and weighing of social, political, and economic consideration underlying public policy decisions, not the application of scientific and technical skills in carrying out established policy, which invokes the discretionary function exception affording governmental immunity”).

12 Terwilliger, 561 N. W.2d at 912-913.

13 Anderson, 678 N. W.2d at 660; Nusbaum, 422 N. W.2d at 723.

14 Anderson, 678 N. W.2d at 662-663.

15 Johnson, 553 N. W.2d at 46.

16 Wiederhold v. City of Minneapolis, 581 N. W.2d 312, 315 (1998).

17 Janklow v. Minnesota Board of Examiners for Nursing Home Administrators, 552 N. W.2d 711, 716 ((1996).

18 Pletan, 494 N. W.2d at 41; Elwood v.County of Rice, 423 N. W.2d 671, 678 (1988).

19 Anderson, 678 N. W.2d at 660-661.

---

MICHAEL K. JORDAN is a professor of law at William Mitchell College of Law, where he has taught since 1993.  He teaches in the areas of employment law and constitutional law.