                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0739

                                Elisea Cervantes Anzures,
                                        Plaintiff,

                                            vs.

                                  Michele Leann Ward,
                                      Respondent,

                                    City of Saint Paul,
                                        Appellant.

                                 Filed January 3, 2017
                                        Reversed
                                    Peterson, Judge

                            Washington County District Court
                               File No. 82-CV-15-4451

Erin F. Musland, Francis J. Rondoni, Chestnut & Cambronne PA, Minneapolis, Minnesota;
and

Keith J. Kerfeld, Tewksbury & Kerfeld, Minneapolis, Minnesota (for respondent)

Samuel J. Clark, St. Paul City Attorney, K. Meghan Kisch, Assistant City Attorney, St.
Paul, Minnesota (for appellant)

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

Judge.

                                    SYLLABUS

         When a municipality’s decision that an employee is not entitled to defense and

indemnification under Minn. Stat. § 466.07, subd. 1 (2016), meets the requirements for a

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

the decision.
                                        OPINION

PETERSON, Judge

       Appellant-city challenges the district court’s denial of its motion to dismiss

respondent-police officer’s cross-claim seeking defense and indemnification, arguing that

the district court erred by determining that it had subject-matter jurisdiction to review the

city’s decision that respondent is not entitled to defense and indemnification under Minn.

Stat. § 466.07, subd. 1. Because the city’s decision was a quasi-judicial decision and no

right of review in the district court is provided by statute or appellate rule, the district court

lacked subject-matter jurisdiction. We reverse.

                                            FACTS

       In August 2009, appellant City of St. Paul employed respondent Michele Leann

Ward, n/k/a Michele Giampolo, as a police officer. While on patrol duty, Ward received

permission from her supervisor to run a personal errand. While running the errand, Ward

drove her city-issued squad car at a speed of about 70 miles per hour in a 30 mile-per-hour

speed zone and crashed into a vehicle that crossed in front of the squad car at an

intersection.

       Ward was charged with misdemeanor speeding and misdemeanor careless driving.

Ward entered an Alford plea1 to the speeding charge, and the careless-driving charge was




1
  See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-68 (1970) (holding
that, in some circumstances, a court may accept a defendant’s guilty plea even though she
maintains her innocence).

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dismissed. Although Ward entered an Alford plea, she responded affirmatively to the

following question: “You’re pleading guilty because you are guilty, correct?”

       About five years later, plaintiff Elisea Cervantes Anzures sued Ward and the city,

alleging that she was the driver of the vehicle that Ward’s squad car struck and that she

sustained bodily injury as a result of Ward’s negligence. Interim City Attorney Laura

Pietan notified Ward that she was conducting an assessment to determine whether the city

would defend and indemnify Ward against the lawsuit. Pietan requested a meeting with

Ward to discuss the matter and gave Ward an opportunity to submit written material

relevant to the determination before the meeting. Ward declined to meet with Pietan or

submit any written materials, stating that her recollection of the accident was “very foggy”

and that Pietan should rely on the statements Ward made immediately after the accident.

       In an April 10, 2015 letter, Pietan notified Ward that she had determined that Ward

was not acting in performance of her duties as a police officer when the accident occurred

and that Ward acted with malfeasance, willful neglect of duty, or bad faith. Therefore,

under Minn. Stat. § 466.07, subd. 1, Ward was not entitled to defense and indemnification

by the city. In making the determination, Pietan considered documentary and other

recorded evidence, including (1) incident reports, the complaint, and the plea transcript

from the district court file on the speeding and careless-driving charges against Ward;

(2) statements and documents relating to the internal-affairs investigation of Ward;

(3) accident reports, laboratory reports, and crash data from the Minnesota State Patrol;

(4) Anzures’s October and December 2009 statements and the complaint in her negligence




                                             3
action; (5) statements by witnesses to the accident and photographs of the accident scene;

and (6) notes and a finding from an accident-review-board meeting.

       Ward filed a cross-claim against the city, seeking a judgment awarding her all costs,

disbursements, and reasonable attorney fees incurred in defending against Anzures’s

lawsuit and “full and complete contribution and indemnity” for any judgment or recovery

that Anzures obtained against Ward. Ward moved for summary judgment, arguing that

she is entitled to defense and indemnification by the city as a matter of law. The city moved

to dismiss Ward’s cross-claim on the ground that the district court lacked subject-matter

jurisdiction to decide the claim. The district court denied both parties’ motions. This

appeal followed.

                                          ISSUE

       Did the district court have subject-matter jurisdiction over Ward’s cross-claim?

                                       ANALYSIS

       “Jurisdiction is a question of law that we review de novo.” In re Comm’r of Pub.

Safety, 735 N.W.2d 706, 710 (Minn. 2007) (quotation omitted).

                      Subject-matter jurisdiction is the court’s authority to
              hear the type of dispute at issue and to grant the type of relief
              sought. The question of whether subject-matter jurisdiction
              exists is a question of law for the court. Defects in subject-
              matter jurisdiction may be raised at any time, and cannot be
              waived by the parties.

Seehus v. Bor-Son Constr., Inc., 783 N.W.2d 144, 147 (Minn. 2010) (citations omitted);

see also Willis v. County of Sherburne, 555 N.W.2d 277, 279 n.1 (Minn. 1996) (stating that




                                             4
“order denying a motion to dismiss for lack of jurisdiction is immediately appealable of

right”).

       If no right of review is provided by statute or appellate rules, a quasi-judicial

decision of a municipality is reviewable only by certiorari. County of Washington v. City

of Oak Park Heights, 818 N.W.2d 533, 539 (Minn. 2012). “If a writ of certiorari . . . is the

exclusive method by which to challenge a municipality’s decision, then the district court

lacks subject matter jurisdiction to hear the case.” Id. at 538. The failure to obtain a timely

writ of certiorari precludes review. See In re Occupational License of Haymes, 444

N.W.2d 257, 259 (Minn. 1989) (reversing review on merits of quasi-judicial decision

because of failure to timely petition for writ of certiorari).

       The district court relied on Nelson v. Schlener, 859 N.W.2d 288 (Minn. 2015), to

support its conclusion that it had subject-matter jurisdiction over Ward’s cross-claim. That

case involved construction of the statute that establishes the state’s obligation to defend

and indemnify state employees against claims “arising out of an alleged act or omission

occurring during the period of employment . . . if the employee was acting within the scope

of employment.” Minn. Stat. § 3.736, subd. 9 (2016). The statute provides:

              Except for elected employees, an employee is conclusively
              presumed to have been acting within the scope of employment
              if the employee’s appointing authority issues a certificate to
              that effect. This determination may be overruled by the
              attorney general. The determination of whether an employee
              was acting within the scope of employment is a question of fact
              to be determined by the trier of fact based upon the
              circumstances of each case:
                     (i) in the absence of a certification,
                     (ii) if a certification is overruled by the attorney general,
                     (iii) if an unfavorable certification is made, or


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                      (iv) with respect to an elected official.
              The absence of the certification or an unfavorable certification
              is not evidence relevant to a determination by the trier of fact.

Id. (emphasis added).

       The supreme court concluded that the term “‘trier of fact’ refers to a fact-finding

body such as a district court” and “not the employing agency or an appellate court.”

Nelson, 859 N.W.2d at 295. Therefore, the supreme court held that Minn. Stat. § 3.736,

subd. 9, provides a right of review of the agency decision that the employee had not acted

within the scope of his employment and that the court of appeals did not have subject-

matter jurisdiction to hear the employee’s petition for a writ of certiorari seeking review of

the agency’s decision. Id. at 294-95. The supreme court explained:

                      The agency, as the employee’s appointing authority, has
              the opportunity under the statute to certify that the employee’s
              conduct was within the scope of employment. It is only after
              the employer does not so certify, or the attorney general
              overrules the employer’s certification, that the “trier of fact” is
              called upon to make the scope-of-employment determination.
              If the “trier of fact” is simply the employer again, the
              employer’s initial certification decision is superfluous, and the
              attorney general’s authority to overrule the employer’s
              certification is essentially meaningless. Our obligation,
              however, is to read the statute so that all of the statute’s terms
              are effective.

                      Moreover, the term “trier of fact” implies an objective
              determination by a neutral party weighing competing factual
              claims. It is difficult to view the agency as an objective trier
              of fact when it made the scope-of-employment decision in the
              first instance. The Legislature also uses different words to
              describe the responsibilities of the trier of fact and those of the
              employer-agency. The Legislature uses the word “case” when
              describing the trier of fact’s responsibilities, and the words
              “claim” and “demand” to describe the issues for which an
              employee can seek defense and indemnification. When the


                                              6
              Legislature uses different words, we normally presume that
              those words have different meanings. The Legislature’s use of
              the word “case” when describing the trier of fact’s activities,
              and its use of the words “claim” and “demand” when
              describing the employer-agency’s responsibilities, confirms
              the legislative intent that the “trier of fact” and the employer-
              agency are distinct entities that play different roles in the
              context of requests for defense and indemnification.

Id. (citations omitted).

       The statute at issue in this case states:

              [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.

       In contrast to section 3.736, section 466.07 does not use the phrase “trier of fact,”

refer to a “case” as opposed to a “claim” or a “demand,” or set forth a multi-step, multi-

actor process for determining whether an employee was acting in the performance of the

duties of the position such that the employee may be entitled to defense and

indemnification. Id.; cf. Nelson, 859 N.W.2d at 293 (stating that Minn. Stat. § 3.736, subd.

9, “essentially provides a three-step process” for scope-of-employment determination,

consisting of (1) appointing authority’s certification that employee was acting within the

scope of employment, (2) attorney general’s opportunity to overrule any certification, and

(3) possible resolution by trier of fact). Section 466.07 simply imposes on a municipality



                                               7
a duty to defend and indemnify its employees and creates two exceptions to that duty,

without specifying any process to determine whether the exceptions apply. Minn. Stat.

§ 466.07, subd. 1. In light of these differences between the two statutes, we decline to

apply the Nelson holding to this case.

       Our conclusion that Nelson does not control this case is supported by the rules of

statutory interpretation. See Nelson, 859 N.W.2d at 292 (“Whether the process in Minn.

Stat. § 3.736, subd. 9, is consistent with certiorari review in the court of appeals presents a

question of statutory interpretation that we examine de novo.”). In interpreting a statute,

“[a court’s] objective is to ascertain and effectuate the intent of the Legislature.” Id.; see

also Minn. Stat. § 645.16 (2016) (“The object of all interpretation and construction of laws

is to ascertain and effectuate the intention of the legislature.”). “If a statute is susceptible

to only one reasonable interpretation, [a court] interpret[s] the statute according to its plain

meaning.” Nelson, 859 N.W.2d at 292. “Plain meaning presupposes the ordinary usage of

words that are not technically used or statutorily defined . . . and draws from the full-act

context of the statutory provision.” Occhino v. Grover, 640 N.W.2d 357, 359 (Minn. App.

2002), review denied (Minn. May 28, 2002).

       Section 466.07 is part of a chapter that addresses the tort liability of political

subdivisions. See generally Minn. Stat. §§ 466.01-.15 (2016). Several sections in chapter

466 authorize decision-making or other actions by municipalities facing potential or actual

tort liability. See, e.g., Minn. Stat. §§ 466.06 (providing that “[t]he governing body of any

municipality may procure insurance against liability of the municipality and its officers,

employees, and agents for damages, including punitive damages, resulting from its torts


                                               8
and those of its officers, employees, and agents”), .08 (providing that “the governing body

of any municipality . . . may compromise . . . and settle tort claims against the municipality

for damages . . . and may, subject to procedural requirements imposed by law or charter,

appropriate money for the payment of amounts agreed upon”), .09 (providing that “[i]f [a]

municipality has the authority to levy taxes and the judgment [entered against it] or

settlement [made by it] is unpaid at the time of the annual tax levy, the governing body

shall, if it finds that other funds are not available for payment of the judgment, levy a tax

sufficient to pay the judgment or settlement”). And two sections of chapter 466 specifically

refer to section 3.736, subdivision 9.      See Minn. Stat. §§ 466.131, .132 (identifying

circumstances under which municipality is treated as state employee for purposes of

defense and indemnification under Minn. Stat. § 3.736, subd. 9).

       In the context of chapter 466, which treats municipalities as actors and decision-

makers in matters related to tort liability, section 466.07, subdivision 1, is subject to only

one reasonable interpretation: A municipality is required to defend and indemnify its

employee unless the municipality determines that the employee was not acting in the

performance of the duties of the employee’s position or was guilty of malfeasance in office,

willful neglect of duty, or bad faith. The statute does not include a right of review of the

municipality’s determination.     This interpretation is underscored by the legislature’s

incorporation of the section 3.736 indemnification provisions elsewhere in chapter 466 but

not in section 466.07. Cf. State v. Expose, 872 N.W.2d 252, 258-59 (Minn. 2015) (stating

that “[t]he inference to be drawn from the Legislature’s decision to create exceptions to the

therapist-client privilege in some statutes, but not others, is that it did not intend to create


                                               9
an exception to the privilege in those statutes that do not mention the privilege”). Applying

the Nelson holding to this case would add a review process to section 466.07. “[O]ne of

[the] basic canons of statutory interpretation” is that “[courts] do not add words or phrases

to an unambiguous statute.” County of Dakota v. Cameron, 839 N.W.2d 700, 709 (Minn.

2013).

         Because section 466.07 does not provide a right of review for Pietan’s decision that

Ward is not entitled to defense and indemnification by the City of St. Paul, the decision is

reviewable only by certiorari if it was a quasi-judicial decision. The elements of a quasi-

judicial decision are “(1) investigation into a disputed claim and weighing of evidentiary

facts; (2) application of those facts to a prescribed standard; and (3) a binding decision

regarding the disputed claim.” Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587

N.W.2d 838, 842 (Minn. 1999).

         When investigating whether Ward was acting in the performance of her duties as a

police officer when the accident occurred, Pietan considered documentary and other

recorded evidence regarding the accident and the speeding and reckless-driving charges

against Ward. That evidence included (1) incident reports, the complaint, and the plea

transcript from the district court file on the speeding and careless-driving charges;

(2) statements and documents relating to the internal-affairs investigation of Ward;

(3) accident reports, laboratory reports, and crash data from the Minnesota State Patrol;

(4) Anzures’s October and December 2009 statements and the complaint in the negligence

action; (5) statements by witnesses to the accident and photographs of the accident scene;

and (6) notes and a finding from an accident-review-board meeting.


                                              10
       Citing Minn. Ctr. for Envtl. Advocacy, Ward argues that the investigation conducted

by Pietan “was vastly different from the kind of investigation and weighing of evidence

found in the typical judicial process, and therefore, it does not constitute a quasi-judicial

decision.” In Minn. Ctr. for Envtl. Advocacy, the supreme court concluded that the

metropolitan council’s approval of a transportation improvement project did not satisfy the

first element of a quasi-judicial decision. 587 N.W.2d at 843. The court explained:

                         It is clear that the research and public comment aspects
                 of respondent’s deliberative process is far more typical of a
                 legislative proceeding than of a judicial proceeding. While the
                 ultimate goal of both proceedings is to reach an informed
                 decision on relevant and sometimes conflicting facts, the
                 similarities end there. Respondent takes no evidence in
                 accordance with formal or informal evidentiary rules,
                 testimony is not given under oath, and there are no formally
                 identified parties to the proceeding offering evidence to
                 support a legal claim. Respondent’s decisions, as with other
                 governmental agencies, are guided by both objective
                 information and public input. We conclude that respondent’s
                 gathering and consideration of information is vastly different
                 from the judicial process of determining facts for the purpose
                 of reaching a legal conclusion in resolution of adversarial
                 claims . . . .

Id. at 842-43.

       Here, Pietan informally accepted evidence, the city and Ward were formally

identified as parties to the proceeding, the city submitted evidence relevant to whether

Ward was entitled to defense and indemnification from the city, Ward was offered an

opportunity to submit evidence but declined to do so, and Ward was represented by an

attorney. After considering the evidence, Pietan made findings of fact. Pietan then applied

those facts to the standard prescribed by Minn. Stat. § 466.07, subd. 1, and determined that,



                                               11
when the accident happened, Ward was not acting in the performance of her duties as a

police officer and that she acted with malfeasance, willful neglect of duty, or bad faith.

Pietan’s actions fulfilled the first two elements of a quasi-judicial decision.

       Ward argues that the city attorney’s April 10, 2015 letter did not constitute a binding

decision because it did not state or indicate that the “letter will have a final and binding

effect on [Ward’s] legal rights” and did not state or indicate how Ward could challenge the

city attorney’s decision. Ward cites no authority stating that such information is required

for a decision to be binding.

       Ward also argues that the letter did not satisfy the third element of a quasi-judicial

decision because it is not binding on her automobile insurance carrier and its right of

subrogation. While there may be circumstances in which a municipality’s decision could

have collateral-estoppel effect, caselaw does not require that, for a decision to be quasi-

judicial, it must have collateral-estoppel effect in future legal proceedings. Cf. Graham v.

Special Sch. Dist. No. 1, 472 N.W.2d 114, 115-16 (Minn. 1991) (stating that collateral

estoppel may apply to agency’s quasi-judicial decisions and listing requirements for

application of collateral estoppel).

       Finally, Ward argues that the city attorney did not have authority to make a quasi-

judicial decision affecting a city employee’s legal rights without the city council’s approval

and oversight. The city’s charter states, “The city attorney shall represent the city in all

causes in which the city is interested and shall have full and complete charge of the legal

business of the city.” St. Paul, Minn., City Charter § 5.02 (1989). The city’s administrative

code contains functionally identical language. St. Paul, Minn., Administrative Code § 3.02


                                              12
(2013). This language is broad enough to permit the city attorney to decide whether an

employee is entitled to defense and indemnification under Minn. Stat. § 466.07, subd. 1.

Thus, the city attorney’s April 10, 2015 letter constituted a binding decision and fulfilled

the third element of a quasi-judicial decision.

       The city’s decision that Ward is not entitled to defense and indemnification under

section 466.07, subdivision 1, against Anzures’s negligence action meets the requirements

for a quasi-judicial decision. Because no right of review is provided by statute or appellate

rule, a writ of certiorari is the exclusive method by which to challenge the decision, and

the district court lacked subject-matter jurisdiction to hear Ward’s cross-claim. See County

of Washington, 818 N.W.2d at 538-39.

                                      DECISION

       Because the district court lacked subject-matter jurisdiction to hear Ward’s cross-

claim, the district court erred in denying the city’s motion to dismiss the cross-claim.

       Reversed.




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