County Office of Appellate Courts
S. Kushner, Law Office of Jordan S. Kushner, Minneapolis,
Minnesota, for appellants.
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.
justiciable controversy is presented by a dispute regarding
the City's authority to refuse to place a proposed
charter-amendment question on the ballot.
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.
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.
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).
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.
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.
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." On August 5,
2016, the City Council voted not to include the proposed
insurance amendment question on the ballot for the November
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.
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."
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
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.
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
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.
"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 ...