                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0608

                                       In the Matter of:
                                      City of Minneapolis,
                                          Respondent,

                                              vs.

                                        Blayne Lehner,
                                           Relator.

                                    Filed January 3, 2017
                                          Affirmed
                                       Peterson, Judge

                                      City of Minneapolis


Susan L. Segal, Minneapolis City Attorney, Trina R. Chernos, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Joseph A. Kelly, Patrick J. Kelly, Kevin M. Beck, Kelly & Lemmons, P.A., Little Canada,
Minnesota (for relator)

         Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Kirk,

Judge.

                           UNPUBLISHED OPINION

PETERSON, Judge

         In this certiorari appeal, relator-police officer asks us to reverse respondent-city’s

decision not to defend and indemnify him against federal civil-rights claims brought by a

detainee who was injured when relator kicked him in the face while on duty. We affirm.
                                           FACTS

       In the early morning hours of December 29, 2013, relator Blayne Lehner was on

duty as a patrol officer with the Minneapolis Police Department. Lehner responded to the

scene of a traffic stop to assist other officers with the stop. A passenger in the stopped

vehicle, later identified as Luis Garcia, was under the influence of alcohol and

uncooperative; officers handcuffed Garcia behind his back, placed him in the back of a

police squad car, and closed the squad car’s door.

       Moments later, Garcia began kicking and flailing around in the back of the squad

car. After about 20 seconds, Garcia stopped moving and sat normally; Lehner approached

the car, opened its door, and told Garcia to stop kicking. According to Lehner, Garcia then

“turn[ed], look[ed], lift[ed] his leg up, kick[ed] at [Lehner], miss[ed] [Lehner’s] knee, . . .

hook[ed] his [own] leg with the door open[,] and br[ought] his other leg up.” Garcia’s

“hooked” leg was outside the door frame “essentially from the ankle down.” Lehner “s[aw]

[Garcia] kind of rear up again for another kick,” so Lehner “decided to do [a] push kick”

to Garcia’s chest to “get him back into the car.” As Lehner started to kick, Garcia “lean[ed]

forward” quickly, and “the bottom of [Lehner’s] foot hit[] Garcia’s face.” Lehner’s kick

“pushed [Garcia’s] whole body back,” and Lehner “slammed the door shut.”

       After noticing that Garcia was not moving, Lehner opened the squad car’s door

again and, with the assistance of another officer, removed Garcia from the car and put him

face-down on the ground. While Garcia was on the ground, Lehner “may have put . . .

[his] knee on [Garcia’s] shoulder blade to hold him down.” Garcia was conscious when

the officers removed him from the car and put him on the ground. When Lehner stood


                                              2
Garcia up to put him back into the squad car, the officers saw blood on the ground and

blood coming from Garcia’s mouth or lip. The officers called a supervisor to the scene,

reported Lehner’s use of force and Garcia’s apparent injury, and took Garcia to a hospital

for medical treatment. Garcia was treated for injuries including fractures of his jaw and

nose, two dislodged teeth, and a laceration on his lip.

         On August 5, 2015, Garcia brought an action against Lehner and respondent City of

Minneapolis in federal district court (federal action), alleging that Lehner’s conduct on

December 29, 2013, violated Garcia’s civil rights.         Lehner timely submitted to the

Minneapolis City Attorney a request that the city defend and indemnify him in the federal

action. The next day, the city attorney notified Lehner of the city’s decision not to defend

or indemnify him in the federal action. The decision was based on the city’s determination

that “[Lehner’s] conduct f[e]ll[] within the exceptions contained in Minn. Stat. § 466.07.”1

The city attorney also informed Lehner that he could challenge that determination by




1
    That statute provides in relevant part:

                [A] municipality or an instrumentality of a municipality shall
                defend and indemnify any of its officers and employees,
                whether elective or appointive, for damages, including punitive
                damages, claimed or levied against the officer or employee,
                provided that the officer or employee:
                       (1) was acting in the performance of the duties of the
                position; and
                       (2) was not guilty of malfeasance in office, willful
                neglect of duty, or bad faith.

Minn. Stat. § 466.07, subd. 1 (2016).

                                              3
requesting “a hearing to determine whether the City has an obligation to defend and

indemnify [him].” Lehner timely requested such a hearing.

       On November 12, 2015, an administrative law judge (ALJ) conducted a hearing to

review the initial defense-and-indemnification decision; at the day-long hearing, the parties

were represented by counsel who presented arguments, witness testimony, and

documentary evidence. On February 24, 2016, the ALJ issued a 27-page document that

included 69 numbered findings of fact and conclusions of law and a recommendation that

the Minneapolis City Council affirm the initial defense-and-indemnification decision

(recommendation document).

       On March 14, 2016, the city attorney provided a copy of the recommendation

document to each member of the city council and to the mayor; the city attorney also

submitted to a committee of the city council a request for affirmance of the initial defense-

and-indemnification decision. The same day, Lehner’s attorney presented oral argument

before the committee, which made a report to the city council. On March 18, the city

council affirmed the initial defense-and-indemnification decision, “adopting the relevant

factual bases as set forth in numbers 1-36, 40-43 and 63-65” of the recommendation

document, and the mayor approved the city council’s action.

       On April 15, 2016, Lehner obtained a writ of certiorari for this court’s review of the

city’s defense-and-indemnification decision. On May 6, this court issued an order directing

the parties to file informal memoranda addressing jurisdiction over Lehner’s certiorari

appeal. After the parties filed informal memoranda addressing the jurisdictional issue, this

court issued a May 25 order deferring a ruling on the jurisdictional issue and making this


                                             4
case a companion case to Anzures v. Ward, ___ N.W.2d ___, No. A16-0739, slip op. (Minn.

App. Jan. 3, 2017), which presented a related jurisdictional question.

                                      DECISION

Jurisdiction

       In the May 6, 2016 order, this court articulated the jurisdictional issue in two parts:

                      (a)   Is the city’s March 18, 2016 denial of defense
               and indemnification under Minn. Stat. § 466.07 a final decision
               reviewable by certiorari, or may [Lehner] raise the defense and
               indemnification issue in the [federal] action?

                      (b)     If [Lehner] has another legal remedy to challenge
               the city’s denial of defense and indemnification, is review by
               certiorari available?

City of Minneapolis v. Lehner, No. A16-0608 (Minn. App. May 6, 2016) (order). “The

writ of certiorari is an extraordinary remedy that is not granted where there is an adequate

remedy in the ordinary course of the law.” Nelson v. Schlener, 859 N.W.2d 288, 292

(Minn. 2015) (quotation omitted); see also City of Hibbing v. Baratto, 620 N.W.2d 58, 60

(Minn. App. 2000) (stating that “certiorari is an extraordinary writ that is appropriate only

when no other review is authorized by law” (citing White Bear Rod & Gun Club v. City of

Hugo, 388 N.W.2d 739, 741 (Minn. 1986))). Accordingly, the answer to part (b) is clear:

If Lehner has another legal remedy to challenge the city’s defense-and-indemnification

decision, then review by certiorari is not available.

       To answer part (a), we first must determine whether the city’s defense-and-

indemnification decision is a quasi-judicial decision. See County of Washington v. City of

Oak Park Heights, 818 N.W.2d 533, 539 (Minn. 2012) (stating that “[appellate courts]



                                              5
have consistently limited review of quasi-judicial decisions of cities and counties to

certiorari review . . . unless judicial review is otherwise expressly authorized by statute”).

The three characteristics of a quasi-judicial decision are “(1) an investigation into a

disputed claim and the weighing of evidentiary facts; (2) the application of those facts to a

prescribed standard; and (3) a binding decision regarding a disputed claim.” Rochester

City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 662 (Minn. 2015), cert. denied 136

S. Ct. 849 (2016).

       The parties agree that the city’s defense-and-indemnification decision is a quasi-

judicial decision. In making its decision, the city used a process that (1) began with a day-

long hearing before an ALJ, during which the parties were represented by counsel and

called witnesses, introduced documentary evidence, and made arguments; (2) advanced to

the ALJ’s issuance of the lengthy recommendation document, which included findings of

fact and conclusions of law; and (3) culminated in the city council’s affirmance of the

initial defense-and-indemnification decision.

       That decision process was consistent with the city’s written policy on defense and

indemnification, which expressly states that “a final decision” on defense and

indemnification is made by the city council following the ALJ’s posthearing

recommendation. And Minnesota law authorized the city’s use of the ALJ to conduct the

hearing and produce the recommendation document. See Minn. Stat. § 14.55 (2016)

(providing that “political subdivisions of the state may contract with the chief [ALJ] for

the purpose of providing [ALJ]s . . . for administrative proceedings” and that “the [ALJ]’s

duties . . . may include the preparation of findings, conclusions, or a recommendation for


                                              6
action by the political subdivision”).        We conclude that the city’s defense-and-

indemnification decision was a quasi-judicial decision. See County of Washington, 818

N.W.2d at 541 (concluding that city’s denial of county’s utility reimbursement claim was

quasi-judicial decision, reasoning in part that city had “statutory authority to provide

[utility] services” and that city’s written policy characterized its “three-part procedure for

appealing utility charges” as mandatory and provided that city council made “the final

determination on appeals” in part three of procedure (quotation omitted)).

         We therefore complete our analysis by applying this court’s holding in Anzures, slip

op. at 13, that when a city’s decision that an employee is not entitled to defense and

indemnification by the city under Minn. Stat. § 466.07, subd. 1, meets the requirements for

a quasi-judicial decision, the exclusive method to challenge the decision is by a writ of

certiorari. We conclude that the city’s decision that Lehner is not entitled to defense and

indemnification by the city is a quasi-judicial decision, and this court has jurisdiction over

Lehner’s certiorari appeal.

Merits

         “[An appellate court] review[s] a quasi-judicial decision rendered by a city under a

limited and nonintrusive standard of review.” Sawh v. City of Lino Lakes, 823 N.W.2d

627, 635 (Minn. 2012) (quotation omitted); see also Gustafson v. Comm’r of Human Servs.,

884 N.W.2d 674, 686 (Minn. App. 2016) (referring to “limited, deferential nature of

certiorari review” of quasi-judicial decision). “Under that standard, [an appellate court]

may not substitute [its] own findings of fact for those of a city, or engage in a de novo

review of conflicting evidence.” Sawh, 823 N.W.2d at 635; see also Staeheli v. City of St.


                                              7
Paul, 732 N.W.2d 298, 303 (Minn. App. 2007) (stating that “a reviewing court . . . will not

retry facts or make credibility determinations”). “Instead, [an appellate court] must uphold

a city’s decision if the city has explained how it derived its conclusion and the city’s

conclusion is reasonable on the basis of the record.” Sawh, 823 N.W.2d at 635 (quotation

omitted).

       Lehner first asks us to reverse the city’s defense-and-indemnification decision as

arbitrary and capricious. According to Lehner,

               the City’s decision to not defend and indemnify is based
               exclusively upon the specific factual bases set forth in
               paragraphs 1-36, 40-43 and 63-65. The[se] . . . factual findings
               . . . are effectively rendered meaningless and, in turn, the
               [city’s defense-and-indemnification decision] is arbitrary
               because (i) the ALJ’s credibility determinations were not
               adopted; and (ii) the ALJ’s legal justification for denying
               defense under Minn. Stat. § 466.07 [was] not adopted.

The city responds that the city council expressly adopted the specified factual bases and

implicitly adopted the associated conclusions of law and recommendation.

       Both Lehner and the city focus on the language of the city council’s affirmance of

the initial defense-and-indemnification decision and cite principles of statutory

construction in support of their respective interpretations of that language. But the city

council’s affirmance of the initial defense-and-indemnification decision was not a

legislative act; rather, it was a single event in a larger process that ended in the city’s quasi-

judicial decision to deny Lehner’s request for defense and indemnification. We do not

review any particular event that occurred during the city’s decision process; rather, we

review the decision that resulted from the process.



                                                8
       In conducting this review, we consider the record that was before the city council

on March 18, 2016, when it affirmed and thereby made final the initial defense-and-

indemnification decision. See Reiling v. City of Eagan, 664 N.W.2d 403, 408 (Minn. App.

2003) (“The reviewing court may consider only the evidence in the record before [a city]

when [its quasi-judicial] decision was made.” (citing Dietz v. Dodge County, 487 N.W.2d

237, 239 (Minn. 1992))). The record before the city council included the official record of

the proceedings before the ALJ, the ALJ’s 27-page recommendation document, the city

attorney’s committee request for affirmance of the initial defense-and-indemnification

decision, Lehner’s attorney’s oral argument before the committee, and the committee’s

report to the city council.

       On that record, the city council affirmed the initial defense-and-indemnification

decision “pursuant to Minn. Stat. sec. 466.07 subd. 1” and adopted specific “factual bases”

in support of the city’s prior determination that “[Lehner’s] conduct f[e]ll[] within the

exceptions contained in Minn. Stat. § 466.07.” The city council thereby implicitly accepted

the ALJ’s credibility determinations, notwithstanding its selective adoption of the ALJ’s

factual findings. Cf. Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 480 (Minn. App. 1985)

(stating in syllabus that “[a] specific finding regarding the credibility of the witnesses was

unnecessary, where such finding was implicit in [administrative agency’s] decision”).

       The city council’s adopted factual findings included the following:

                     3. Since his hire into the Minneapolis Police
              Department (MPD) nearly 17 years ago, [Lehner] has
              participated in a 16-week course at the Minneapolis Police
              Academy and in training provided by the MPD several times
              annually . . . .


                                              9
      4. [Lehner] testified that he received training regarding
“push kicks” at . . . the Minneapolis Police Academy. . . .

       ....

        7. MPD Policy 5-300, titled “Code of Conduct and Use
of Force Policy,” . . . [states that] “sworn MPD employees shall
only use the amount of force that is objectively reasonable in
light of the facts and circumstances known to that employee at
the time force is used. The force used shall be consistent with
MPD training.” . . .

       ....

       12. On June 26, 2002, [Lehner] signed a document
indicating as follows: “I understand that I am accountable for
knowing and abiding by all policies and procedures contained
within the Minneapolis Policy and Procedure Manual and that
I will be held accountable for abiding by the policies and
procedures contained therein.”

       ....

       15. MPD Deputy Chief Travis Glampe has never heard
of a “push kick,” and he has never instructed anyone at the
Minneapolis Police Academy to train on that maneuver.

     16. [MPD] does not train its police officers to kick
someone back into a squad car.

       ....

       30. [On December 29, 2013, while confined in the back
of a squad car,] Mr. Garcia started to kick against the partition
and bang his head on the bars on the right rear side of the squad
car.

       ....

        32. Once Mr. Garcia had stopped flailing and was
“sitting there normal” and “not kicking anymore,” [Lehner]



                               10
              opened the squad’s rear passenger door and told Mr. Garcia to
              stop kicking.

                      33. [Lehner] testified that Mr. Garcia then “lifts his leg
              up, kicks at me, misses my knee, hooks his leg, . . . with the
              door open and brings his other leg up while he is sitting
              [restrained by] handcuffs behind his back, and now I think he
              is going to kick me again or try to get out.”

                     34. [Lehner] intended to kick Mr. Garcia, a flailing
              individual who was handcuffed and confined in the back seat
              of a police car and kicking in the direction of an officer who
              had just opened the car door.

                      35. [Lehner] testified that he then attempted to “push
              kick” Mr. Garcia in the chest but, because Mr. Garcia was
              flailing, [Lehner] missed his intended target and kicked Mr.
              Garcia in the face.

                     36. With one kick, [Lehner] impacted Mr. Garcia’s face
              with sufficient force to fracture his jaw, fracture his nose and
              sinuses, lacerate his lower lip, dislodge two teeth, and cause
              him to lose consciousness “for a second.”

These factual findings support a determination that Lehner’s December 29, 2013 conduct

constituted “malfeasance in office, willful neglect of duty, or bad faith,” a statutory

exception to the city’s duty to defend and indemnify Lehner in the federal action. See

Minn. Stat. § 466.07, subd. 1(2). We therefore conclude that the city’s defense-and-

indemnification decision was not arbitrary and capricious.          See Moreno v. City of

Minneapolis, 676 N.W.2d 1, 7 (Minn. App. 2004) (stating that a city’s quasi-judicial

“decision is unreasonable, or arbitrary and capricious[,] when it is based on whim or devoid

of articulated reasons” and that “[a] court is obligated to affirm the decision if the record

shows the city engaged in reasoned decision making” (quotation omitted)).




                                             11
       Lehner next asks us to reverse the city’s defense-and-indemnification decision as

unsupported by substantial evidence. Despite this argument’s label as attacking the

evidentiary support for the defense-and-indemnification decision, the argument’s

substance is almost identical to Lehner’s previous argument: Lehner questions the city

council’s affirmance of the initial defense-and-indemnification decision “without

discussion or explanation” and its failure to “discuss or articulate any rationale . . . for

adopting only specific portions of the . . . recommendation [document].” These purported

deficiencies in one event in the city’s decision process do not alter the evidentiary support

for the city’s defense-and-indemnification decision.

       As noted by the city, Lehner has not identified a single factual finding that lacks

evidentiary support in the record. We nevertheless have inspected the record that was

before the city council when it affirmed the initial defense-and-indemnification decision,

and we are satisfied that each of the adopted factual findings is supported by substantial

evidence. See In re N. Metro Harness, Inc., 711 N.W.2d 129, 137 (Minn. App. 2006)

(stating that quasi-judicial decisions are reviewed for substantial evidence, defined as

“(1) such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more

than any evidence; or (5) the evidence considered in its entirety” (quotation omitted)),

review denied (Minn. June 20, 2006).

       Finally, Lehner appears to assign legal error to the city’s decision process itself,

suggesting that a city’s decision whether to defend its employee against a lawsuit must be

made on the basis of “the factual allegations contained within the four corners of the


                                             12
underlying complaint,” while the city’s decision whether to indemnify the employee

against any resulting judgment against him may be made with consideration of “the facts

developed at trial.” In advancing this argument, Lehner makes no attempt to justify his

reliance on cases that involved an insurer’s common-law duties to defend and indemnify

its insured, even though the case before us involves a municipality’s statutory duties to

defend and indemnify its employee.

       In any event, the language of section 466.07 makes no distinction between a

municipality’s duty to defend and its duty to indemnify, instead providing that “a

municipality . . . shall defend and indemnify any of its . . . employees . . . for damages . . .

claimed . . . against [him]” so long as he “was acting in the performance of the duties of

the position” and “was not guilty of malfeasance in office, willful neglect of duty, or bad

faith.” Minn. Stat. § 466.07, subd. 1. The only reasonable interpretation of this statutory

language is that the city must either defend and indemnify its employee or, if it determines

that at least one of the exceptions applies, the city need not defend or indemnify its

employee. We may not “add words or phrases to an unambiguous statute,” County of

Dakota v. Cameron, 839 N.W.2d 700, 709 (Minn. 2013), and we must “interpret the statute

according to its plain meaning.” Nelson, 859 N.W.2d at 292. We conclude that Lehner’s

legal-error argument is meritless.

       Affirmed.




                                              13
