Walsh v. State

962 N.W.2d 201

Joseph WALSH, Appellant,

Don Lorge, Appellant,

v.STATE of Minnesota, Respondent.

A20-1083

Court of Appeals of Minnesota.

Filed May 10, 2021

Review Granted July 20, 2021

Scott G. Knudson, Scott M. Flaherty, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota (for appellant Walsh)

Douglas A. Kelley, Brett D. Kelley, Stacy L. Bettison, Kelley, Wolter & Scott, P.A., Minneapolis, Minnesota (for appellant Lorge)

Keith Ellison, Attorney General, Jacob Campion, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Larkin, Judge; and Gaïtas, Judge.

GAÏTAS, Judge

Appellants Mille Lacs County Attorney Joseph Walsh and Mille Lacs County Sheriff Don Lorge challenge the district court's dismissal of their complaint for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e). In the complaint, Walsh and Lorge seek indemnification from the state under the Minnesota state tort claims act, Minn. Stat. § 3.736 (2020), in relation to a federal lawsuit brought by the Mille Lacs Band of Ojibwe (the Band). The Band asserts in the federal lawsuit that Walsh and Lorge have interfered with and refused to recognize the Band's law-enforcement jurisdiction. Walsh and Lorge contend that because the federal lawsuit involves prosecutorial and law-enforcement duties they perform on behalf of the state, they are "employees of the state" as defined by section 3.732, subdivision 1(2), and therefore must be indemnified by the state in the lawsuit. We disagree and accordingly affirm.

FACTS¹

The Federal Lawsuit

In November 2017, the Band, which is a federally recognized Indian tribe, and two of its law-enforcement officers filed a federal lawsuit against Mille Lacs County (the county); Walsh, individually and in his official capacity as county attorney; and Brent Lindgren, individually and in his capacity as county sheriff. See Mille Lacs Band of Ojibwe v. County of Mille Lacs , No. 17-cv-5155 (SRN/LIB), 508 F.Supp.3d 486 (D. Minn. Dec. 21, 2020) ; see also 85 Fed. Reg. 5462, 5464 (Jan. 30, 2020). Lorge later replaced Lindgren as Mille Lacs County Sheriff and was substituted into the lawsuit. Mille Lacs Band of Ojibwe , 508 F.Supp.3d at 492. The federal lawsuit, as the United States District Court for the District of Minnesota has put it, "involves important and complex issues regarding the boundaries of the Mille Lacs Indian Reservation and, consequently, the extent of the Mille Lacs Band's sovereign law enforcement authority within those boundaries." Id. We briefly summarize the boundary and law-enforcement jurisdiction disputes here, as they are only relevant insofar as they inform the question of indemnification; the merits of the disputes are not before us and are for the federal court to resolve.

In 1855, Article 2 of the Treaty between the Minnesota Chippewa Tribe and the United States established the Mille Lacs Indian Reservation, comprised of about 61,000 acres of land. Id. ; Treaty with the Chippewa, art. 2, Feb. 22, 1855, 10 Stat. 1165. Currently, within the bounds of the original reservation territory, the United States holds about 3,600 acres of land in trust for the benefit of the Band. Mille Lacs Band of Ojibwe , 508 F.Supp.3d at 492. In the Band's view, the boundaries of the reservation as established in 1855 have not been disestablished or diminished, and the reservation still consists of the original 61,000 acres. Id. The county, Walsh, and Lorge (the county defendants), on the other hand, have taken the position that the reservation has since been diminished or disestablished through subsequent federal treaties, statutes, and agreements. Id.

In connection with the boundary dispute, the county defendants and the Band disagree about the jurisdiction of the Band's police officers. Id. at 493. According to the county defendants, Band police officers’ authority is limited to the 3,600 acres of trust land, and, even on trust land, Band police officers cannot investigate violations of law by non-Band members. Id. The Band's federal complaint alleges that Walsh "has threatened Band police officers ... with arrest and prosecution if they exercise law enforcement authority on non-trust lands ... or with respect to non-Band members." Complaint at 5, Mille Lacs Band of Ojibwe , 508 F.Supp.3d 486 (No. 17-cv-5155 (SRN/LIB) ). Walsh has also allegedly asserted that he will not prosecute criminal cases that are based on Band investigations on non-trust lands. Complaint at 5-6. The federal complaint further alleges that Walsh and Lorge have instructed sheriff's deputies not to arrest individuals apprehended by Band police officers, and that Band police officers have been effectively deterred from responding to criminal activity within the reservation. Id. at 6. And the federal complaint states that Walsh and Lorge's assertions and instructions were made "on behalf of the County and are the official custom or policy of the County." Id. at 6.

The Band seeks declaratory and injunctive relief in the federal lawsuit. Specifically, the Band requests a declaration that it "possesses inherent sovereign authority to establish a police department and to authorize Band police officers to investigate violations of federal, state and tribal law within the Mille Lacs Indian Reservation as established in Article 2 of the [1855] Treaty with the Chippewa," and requests that the county defendants be enjoined from taking or failing to take any actions that interfere with the authority of Band police officers. Id. at 7-8.

Walsh and Lorge Request Indemnification from the State

Shortly after the Band initiated the federal lawsuit, Walsh and Lorge sought indemnification from the county. According to their complaint in this matter, the county has since paid "some" of their expenses and attorney fees associated with defending the federal lawsuit. Then, about a year and a half into the federal litigation, they also sought indemnification from the state.

In June 2019, Walsh and Lorge, through counsel, sent a letter to the Minnesota Attorney General's Office requesting defense and indemnification under the Minnesota state tort claims act, Minn. Stat. § 3.736. They requested that the state indemnify them "for costs and fees already incurred and going forward" in the federal lawsuit. The letter asserts that Walsh and Lorge are "employees of the state" within the meaning of section 3.736, as defined in section 3.732, subdivision 1(2), because their actions in the boundary dispute with the Band were taken on behalf of the state, and pursuant to authority "delegated" by the state.

In regards to "delegated" authority, the letter highlights that, following the termination of a cooperative agreement between the county and the Band in 2016, see Minn. Stat. § 626.90 (2020), Walsh contacted the Minnesota Attorney General's Office and requested an opinion on "the status of the Band's police force." The attorney general declined to issue such an opinion and stated that Walsh should "advise the County as [he] deem[ed] appropriate." Walsh then advised the county in accord with longstanding state policy—that the reservation was limited to the 3,600-acre trust land—and the county implemented that position through law-enforcement directives. See Mille Lacs Band of Ojibwe , 508 F.Supp.3d at 493–500. The county's position and corresponding actions ultimately resulted in the Band bringing the federal lawsuit.

The attorney general's office denied Walsh and Lorge's request for indemnification, explaining that the Minnesota state tort claims act only applies to "employee[s] of the state," Minn. Stat. §§ 3.732, subd. 1(2), .736, and county attorney Walsh and county sheriff Lorge are employees of the county. The attorney general's office also denied that it had "delegated" any authority to Walsh and Lorge in regards to their actions in the dispute over the reservation boundary and law-enforcement jurisdiction.

This Lawsuit

After the state denied their indemnification request, Walsh and Lorge initiated this action in Minnesota district court, seeking monetary damages from the state to cover past legal expenses incurred in the federal lawsuit, declaratory judgment that they are entitled to indemnification under section 3.736, subdivision 9, and an order directing the state to pay their future legal expenses in the federal case.

Their complaint, like the indemnification-request letter to the attorney general's office, emphasizes that the state's previous and longstanding position regarding the boundary of the Mille Lacs Reservation aligned with the county's current position: that the reservation is limited to the approximately 3,600 acres of land held in trust by the federal government.² The complaint references and attaches a series of statements from previous Minnesota Attorneys General and Governors expressing that position.

The complaint goes on to allege that Walsh "acts on behalf of the State in his role as Mille Lacs County Attorney," and that he specifically acts on the state's behalf "when he prosecutes state-law-defined crimes." As to Lorge, the complaint alleges that "[t]he state has empowered Lorge to keep and preserve the peace of Mille Lacs County," and that Lorge "acts on behalf of the State when he pursues or apprehends felons." It further alleges that Lorge acts on behalf of the state when he "executes processes, writs, precepts, and orders issued by state courts."

The state moved to dismiss Walsh and Lorge's complaint for failure to state a claim under Minnesota Rule of Civil Procedure 12.02(e), arguing that the Minnesota state tort claims act does not apply to counties and county officials, and that county officials must instead seek indemnification under the Minnesota municipal tort claims act, Minn. Stat. § 466.01 -.15 (2020). The district court granted the state's motion to dismiss, reasoning that county attorneys and county sheriffs perform their routine prosecutorial and...