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Bicking v. City of Minneapolis

Supreme Court of Minnesota

March 15, 2017

David Bicking, et al., Appellants,
City of Minneapolis, et al., Respondents, Ginny Gelms, in her official capacity as Elections Manager, Hennepin County, Respondent, Police Officers' Federation of Minneapolis, intervenor, Respondent.

         Hennepin County Office of Appellate Courts

          Jordan S. Kushner, Law Office of Jordan S. Kushner, Minneapolis, Minnesota, for appellants.

          Susan L. Segal, Minneapolis City Attorney, Timothy S. Skarda, Tracey N. Fussy, Andrea K. Naef, Lindsey E. Middlecamp, Assistant City Attorneys, Minneapolis, Minnesota, for respondents City of Minneapolis, et al.

          Michael O. Freeman, Hennepin County Attorney, Daniel P. Rogan, Senior Assistant County Attorney, Minneapolis, Minnesota; and James P. Michels, Erik P. Bal, Rice, Michels, & Walther, LLP, Minneapolis, Minnesota, for respondent Police Officers' Federation of Minneapolis.


         1. A justiciable controversy is presented by a dispute regarding the City's authority to refuse to place a proposed charter-amendment question on the ballot.

         2. The district court did not err in dismissing appellants' petition to require the City to place a question proposing an amendment to the City Charter on the ballot for the general election because the proposed charter amendment conflicts with state law.



          PER CURIAM.

         Appellants David Bicking, Michelle Gross, Janet Nye, and Jill Waite (collectively, "Bicking") are members of a citizen group in Minneapolis that they contend they formed to advocate for measures to improve policing and police accountability in the City. In July 2016, Bicking's group submitted a petition to the Minneapolis City Council for consideration of a question regarding a proposed amendment to the Minneapolis City Charter to be placed on the ballot for the November 2016 general election. The amendment, as proposed by Bicking's group, would require City police officers to obtain and maintain professional liability insurance coverage and would impose other conditions for coverage and indemnification ("proposed insurance amendment"). The Minneapolis City Council directed the City Clerk not to include the proposed insurance amendment question on the ballot for the November 2016 election after concluding that the amendment conflicted with and was preempted by state law. Bicking filed a petition in Hennepin County District Court, under Minn. Stat. § 204B.44 (2016), to challenge that decision. The district court agreed with the Minneapolis City Council and dismissed the petition. We granted Bicking's petition for accelerated review. In an order, we affirmed the order and judgment of the district court dismissing Bicking's petition, concluding that the proposed insurance amendment conflicts with state law. This opinion confirms the decision made in that order.

         The facts are largely undisputed. Minneapolis is a home rule charter city. See Minn. Const. art. XII, § 4 (permitting "[a]ny local government unit . . . [to] adopt a home rule charter for its government"); Minn. Stat. § 410.04 (2016) (authorizing "[a]ny city in the state" to "frame a city charter for its own government in the manner" prescribed by chapter 410). "Subject to the limitations in" Minn. Stat. ch. 410 (2016), a charter "may provide for any scheme of municipal government not inconsistent with the constitution" and "may provide for the establishment and administration of all departments of a city government, and for the regulation of all local municipal functions, as fully as the legislature might have done before home rule charters for cities were authorized." Minn. Stat. § 410.07. Once a municipal charter is adopted, proposals to amend a charter can be made by the city's charter commission, see Minn. Const. art. XII, § 5; Minn. Stat. § 410.12, subd. 1; see also Minn. Stat. § 410.05, subd. 1 (explaining the appointment of a "charter commission to frame and amend a charter"); or "by a petition of five percent of the voters of the local government unit, " Minn. Const. art. XII, § 5; see Minn. Stat. § 410.12, subd. 1 (authorizing "voters equal in number to five percent of the total votes cast" in the last general election to petition for charter amendments).

         When voters submit a petition to amend the charter, the city clerk verifies the signatures on a petition, Minn. Stat. § 410.12, subd. 3, then forwards the proposed amendment to the city council for consideration of the form of a ballot question for the proposed amendment, id., subd. 4. The proposed charter amendment is then "submitted to the qualified voters" at a general election or at a special election. Minn. Stat. § 410.12, subd. 4.

         Bicking's proposed insurance amendment, submitted to the Minneapolis City Council for consideration on July 11, 2016, would require Minneapolis police officers to carry professional liability insurance as the officer's "primary" insurance. Specifically, the proposed insurance amendment states as follows:

Each appointed police officer must provide proof of professional liability insurance coverage in the amount consistent with current limits under the statutory immunity provision of state law and must maintain continuous coverage throughout the course of employment as a police officer with the city. Such insurance must be the primary insurance for the officer and must include coverage for willful or malicious acts and acts outside the scope of the officer's employment by the city. If the City Council desires, the city may reimburse officers for the base rate of this coverage but officers must be responsible for any additional costs due to personal or claims history. The city may not indemnify police officers against liability in any amount greater than required by State Statute unless the officer's insurance is exhausted. This amendment shall take effect one year after passage.

         Before the Minneapolis City Council considered the proposed insurance amendment, the City Attorney concluded that the proposed amendment "is preempted by state law and conflicts with state public policy." Relying on provisions in Minn. Stat. ch. 466 (2016), which impose obligations on municipalities to defend and indemnify an employee acting within the scope of the employee's job duties, and Minn. Stat. § 471.44 (2016), which imposes a similar requirement on municipalities that is specific, among others, to police officers, the City Attorney concluded that the proposed insurance amendment "is not a legally appropriate charter amendment and the City Council should decline to place [it] on the ballot."[1] On August 5, 2016, the City Council voted not to include the proposed insurance amendment question on the ballot for the November 2016 election.

         That same day, Bicking filed a petition under Minn. Stat. § 204B.44 in Hennepin County District Court. In his petition, Bicking asserted that requiring City police officers "to obtain their own insurance does not forbid" the City from "defending and indemnifying [those officers] so long as the employee was acting within the scope of his or her job duties and was not guilty of malfeasance, willful neglect of duty, or bad faith." The City asked the district court to dismiss the petition, asserting that the proposed insurance amendment conflicts with state law.

         On August 22, 2016, the district court dismissed the petition. The court first found a "strong argument for field preemption" with respect to "who shall be financially responsible for claims made against city police officers" because Minnesota Statutes chapter 466 "addresses municipal tort liability exhaustively." If not field preemption, the district court concluded that express preemption applies because Minn. Stat. § 466.11, which makes the provisions of chapter 466 "exclusive of" home rule charter provisions "on the same subject, " reflects a legislative "intent to occupy the field." Finally, finding that the proposed insurance amendment conflicts with several statutes that address indemnification and defense of municipal employees, the court concluded that conflict preemption "operates to void the proposed charter amendment."

         On August 25, 2016, Bicking filed a notice of appeal with the court of appeals and at the same time, filed a petition for accelerated review with our court. Minn. R. Civ. App. P. 118 ("Any party may petition the Supreme Court for accelerated review of any case pending in the Court of Appeals . . . ."). We granted Bicking's petition for accelerated review.

         On appeal, Bicking asserts that the district court erred in dismissing his petition because the plain language of the proposed insurance amendment reveals a meaning and intent with respect to police liability insurance coverage that are different from, yet consistent with, state law. The City urges us to affirm the district court, contending that state law preempts the proposed insurance amendment.


         We begin by addressing whether we have jurisdiction to resolve this dispute. Bicking contends that, having obtained the required number of citizen signatures and following other procedural steps for a citizen-initiated charter amendment, the City's only authority was to approve the form of the question for the ballot. See Minn. Stat. § 410.12, subd. 4 (authorizing "[t]he form of the ballot" to be "fixed by the governing body"). The City argues that its authority is beyond ministerial. Specifically, the City argues that it is not required to undertake a futile election for the sake of a proposed charter amendment that will never be part of the charter, regardless of the election, because the amendment is unconstitutional or contrary to state law. See State ex rel. Andrews v. Beach, 155 Minn. 33, 35, 191 N.W. 1012, 1013 (1923) ("A home rule charter and all amendments thereto must be in harmony with the Constitution and laws of this state.").

         We have express statutory authority to resolve the dispute between the parties: whether the Minneapolis City Council properly directed the City Clerk not to place the proposed question on the ballot for the 2016 election. See Minn. Stat. § 204B.44(a)(1) (conferring authority on the judicial branch to correct any error or omission "in the placement . . . of . . . any question on any official ballot"). Bicking invoked section 204B.44 when he filed his petition in the district court, the parties agree that section 204B.44 confers judicial authority to review a ballot-question decision, and none of the parties before us have questioned our authority to act in this case. The dissent, however, contends we lack jurisdiction based on the advisory-opinion doctrine. We disagree.

         We "require the presence of a justiciable controversy as essential to our exercise of jurisdiction." Schowalter v. State, 822 N.W.2d 292, 298 (Minn. 2012); see also Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611, 617 (Minn. 2007) (explaining that a justiciable controversy exists when a claim presents "definite and concrete assertions of right that emanate from a legal source, " "a genuine conflict in tangible interests between parties with adverse interests, " and a controversy capable of "resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion"). Here, we have a dispute between adverse parties that claim a legal right to control the decision to place a proposed charter amendment before City voters in the form of a ballot question. The parties' conflicting legal claims present a concrete, genuine, justiciable controversy regarding the City's authority to refuse to place a citizen-initiated proposed charter amendment on the ballot. And our precedent makes clear ...

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