2021 WL 1847739
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Court of Appeals of Minnesota.
Joseph WALSH, Appellant,
Don Lorge, Appellant,
STATE of Minnesota, Respondent.
Filed May 10, 2021

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.




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), ––– F.Supp.3d ––––, 2020 WL 7489475 (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, ––– F.Supp.3d at ––––, 2020 WL 7489475, at *1. 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, ––– F.Supp.3d at ––––, 2020 WL 7489475, at *1. 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 ––––, 2020 WL 7489475 at *2. 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, ––– F.Supp.3d ––––, 2020 WL 7489475 (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, ––– F.Supp.3d at –––– – ––––, 2020 WL 7489475 at *2-8. 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 law-enforcement duties on behalf of the counties in which they are elected, and not on behalf of the state. The district court also noted that the Minnesota Legislature made a “critical distinction between state and county employees” with the Minnesota state tort claims act and Minnesota municipal tort claims act.

This appeal follows.


Are Walsh and Lorge “employees of the state” under Minnesota Statutes section 3.732, subdvision 1(2), and therefore eligible for indemnification by the state in the federal lawsuit?


Appellate courts review de novo a district court’s decision to dismiss a complaint under rule 12.02(e). In re Individual 35W Bridge Litig., 806 N.W.2d 811, 815 (Minn. 2011). In doing so, we examine whether the complaint sets forth a legally sufficient claim for relief. See id. We assume that the facts alleged in the complaint are true and construe all reasonable inferences in favor of the nonmoving party. See Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). We may also consider the “particular documents and oral statements referenced in the complaint” without converting a motion for dismissal under rule 12.01(e) into a motion for summary judgment. See Martens, 616 N.W.2d at 740 n.7.

In considering the state’s motion to dismiss the complaint, the district court interpreted provisions of the Minnesota state tort claims act. See Minn. Stat. § 3.736. Appellate courts review questions of statutory interpretation de novo. State v. Defatte, 928 N.W.2d 338, 340 (Minn. 2019). When interpreting a statute, the goal is to ascertain the legislature’s intent. Minn. Stat. § 645.16 (2020); Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn. 2012). To do so, reviewing courts first examine the language of the statute and ask whether it is ambiguous, or “subject to more than one reasonable interpretation.” Tapia v. Leslie, 950 N.W.2d 59, 61 (Minn. 2020). In determining whether language is ambiguous, courts give words their plain and ordinary meaning, unless the terms are statutorily defined. See Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). Additionally, “[m]ultiple parts of a statute may be read together so as to ascertain whether the statute is ambiguous.” Id. at 537. If the statutory language is susceptible to only one reasonable interpretation, reviewing courts apply the statute’s plain language and do not explore “the spirit or purpose of the law.” Caldas, 820 N.W.2d at 836 (citing Minn. Stat. § 645.16 (2012)).

Walsh and Lorge claim that the district court erred by determining that they are not “employees of the state” entitled to indemnification under the Minnesota state tort claims act. Under section 3.736, subdivision 9, of the act, the state is responsible for indemnifying “any employee of the state” when the employee is subject to a claim “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. Section 3.732, subdivision 1(2), provides the applicable definition of “employee of the state,” defining the term to include “all present or former officers, members, directors, or employees of the state,” as well as “persons acting on behalf of the state in an official capacity, temporarily or permanently, with or without compensation.” The same subdivision defines “state” to include “each of the departments, boards, agencies, commissions, courts, and officers in the executive, legislative, and judicial branches of the state of Minnesota,” but specifically excludes cities, towns, counties, or other local governmental bodies. Minn. Stat. § 3.732, subd. 1(1).3

At oral argument, both parties agreed that section 3.732, subdivision 1, is unambiguous. But the parties offered differing interpretations of the statute.

Walsh and Lorge argue that the language defining “employee of the state” is broad enough to include “county employees acting on behalf of the state.” They argue that both county attorneys and county sheriffs act on behalf of the state when performing many of their basic job functions. County attorneys routinely appear on behalf of “the state” in criminal prosecutions, which is reflected in case captions for criminal matters. And sheriffs enforce state laws. Moreover, according to Walsh and Lorge, county employees should not be excluded from coverage under the Minnesota state tort claims act simply because they might also be covered by the Minnesota municipal tort claims act.4

The state responds that Walsh and Lorge’s arguments ignore the statutory definition of “state” in section 3.732, subdivision 1, which explicitly excludes counties. See Minn. Stat. § 3.732, subd. 1(1). Moreover, the state argues, county attorneys do not fall within the ambit of the statute merely because they represent the state in a general sense in criminal investigations and prosecutions. “State” is defined by reference to departments, boards, agencies, and other specific government entities. Minn. Stat. § 3.732, subd. 1(1). Given this definition, the state contends, a person acting “on behalf of the state” must be acting on behalf of one of the state’s departments, boards, agencies, or branches as described in the statute.5

As an initial matter, Walsh and Lorge are, as they concede, employees of the county. County attorneys and county sheriffs are “county officers” under Minnesota law. See Minn. Stat. § 382.01 (2020) (identifying county officers). They are elected by their counties, and their salaries and budgets are set by the county board and are funded by county tax levies. Id.; Minn. Stat. §§ 387.20, 388.18 (2020); see also Amdahl v. Fillmore County, 258 N.W.2d 869, 876 (Minn. 1977); In re: The Year 2019 Salary of Freeborn Cty. Sheriff, 955 N.W.2d 917, 919-20 (Minn. 2021). County attorneys are compensated “for services rendered by them for their respective counties,” Minn. Stat. § 388.18, subd. 1, and county sheriffs may be reimbursed “[i]n addition to [their] salary ... for all expenses incurred in the performance of official duties for the sheriff’s county,” Minn. Stat. § 387.20, subd. 1.

State law also makes clear that the duties of the county officials are to their counties. The ordinary, statutorily assigned duties of county attorneys include that they “appear in all cases in which the county is a party”; “give opinions and advice, at the request of the county board or any county officer, upon all matters in which the county is or may be interested”; and “prosecute felonies.” Minn. Stat. § 388.051, subd. 1 (2020). Likewise, sheriffs “keep and preserve the peace of the county, ... pursue and apprehend all felons, execute all processes, writs, precepts, and orders ..., and perform all of the duties pertaining to the office.” Minn. Stat. § 387.03 (2020).

These statutes lead us to conclude that the ordinary law-enforcement actions of county attorneys and county sheriffs are performed on behalf of the counties that they serve. County residents elect these officials. The county pays their salaries. And the county sets their budgets. County attorneys and county sheriffs have significant discretion to set the priorities of their offices; no state agency directly controls the means or manner of the performance of their duties.

Having established that county attorneys and county sheriffs ordinarily act on behalf of the counties that they serve, we turn to Walsh and Lorge’s specific argument that county attorneys act on behalf of the state within the meaning of the state tort claims act by representing “the state” in criminal proceedings. The definition of “state” within the meaning of the Minnesota state tort claims act is specifically tailored in section 3.732, subdivision 1(1), to refer to the various state departments, boards, agencies, commissions, courts, and branch officers. Subdivision 1(1) goes on to list specific entities that fall within the definition—thereby preventing uncertainty about their status—including the Housing Finance Agency, the Minnesota Officer of Higher Education, the Armory Building Commission, the Zoological Board, the University of Minnesota, the Minnesota State Colleges and Universities, state hospitals, and state penal institutions. Minn. Stat. § 3.732, subd. 1(1). And again, subdivision 1(1) specifically provides that “state” does not include cities, towns, counties, or other local governmental bodies.

The definition of “employee of the state” in subdivision 1(2) similarly provides specific examples that dispel potential uncertainly about who qualifies. Id., subd. 1(2). For example, it includes “a district public defender or assistant district public defender in the Second or Fourth Judicial District,” but does not include “a guardian ad litem acting under court appointment.” Id.

The plain language of these statutory definitions satisfies us that even though prosecutors represent the State of Minnesota, or the general public, in a broader sense in criminal matters, they do not thereby act on behalf of the “state” within the specific, tailored meaning of the Minnesota state tort claims act. In other words, county attorneys do not ordinarily act on behalf of the state entities in section 3.732, subdivision 1(1), when prosecuting crimes. Instead, as explained above, they act on behalf of the county, and counties are specifically excluded from the definition of “state.” We accordingly reject Walsh and Lorge’s broad-sweeping argument that county attorneys and county sheriffs generally act on behalf of the state for the purposes of tort-claim indemnification, simply by virtue of prosecuting violations of, and enforcing, state law.6

In addition to their argument based on the plain language of the statute, Walsh and Lorge cite Andrade v. Ellefson, 391 N.W.2d 836, 840 (Minn. 1986), to support their assertion that they are eligible for state indemnification. In Andrade, the supreme court concluded that a county acted “on behalf of the state in an official capacity” within the meaning of section 3.732, subdivision 1(2), in performing “a responsibility assigned to the state” that had been delegated by rulemaking from the commissioner of human services to the county. 391 N.W.2d at 840. Specifically, the commissioner had enlisted the help of county welfare agencies to investigate day-care licensing and had specified that, for the purpose of these investigations, the county welfare agencies were the “duly delegated representative[s] of the commissioner.” Id. (quoting Minn. R. 9545.0310, subp. 1, .0320, subp. 3 (1985)). The supreme court held that even though section 3.732, subd. 1(1), expressly excludes counties from the definition of “state,” a county can still, “in certain circumstances, be an ‘employee’ of the state.” Id. Under such circumstances, where “the county acts for the state in performing a responsibility assigned to the state but delegated by it to the county, ... the county partakes in the state’s immunity.” Id.

Walsh and Lorge’s reliance on Andrade is misplaced. Their complaint alleges no similar delegation of state authority. Instead, the law-enforcement-related duties that Walsh and Lorge claim they perform on behalf of the state are duties expressly assigned to county sheriffs and county attorneys by Minnesota statute. See Minn. Stat. §§ 387.03, 388.051, subd. 1. Moreover, their complaint does not allege that the state specifically delegated the activity that is the basis for the federal lawsuit.7 Ultimately, Andrade involved express delegation of state authority to the county, and does not support Walsh and Lorge’s argument that they are entitled to share in the state’s immunity here where no delegation was alleged. See 391 N.W.2d 836. The complaint does not support a reasonable inference that Walsh and Lorge acted as employees of the state. See Walsh, 851 N.W.2d at 606.


Because county attorneys and county sheriffs do not act on behalf of the state within the meaning of the Minnesota state tort claims act when they perform their routine, statutorily assigned prosecutorial and law-enforcement duties, and because Walsh and Lorge have alleged no specific delegation of state authority here, the district court properly dismissed their complaint for failure to state a claim under Minn. R. Civ. P. 12.02(e).8


All Citations
--- N.W.2d ----, 2021 WL 1847739



Our summary of the facts is based on appellants’ complaint and accompanying documents, which include the Band’s complaint in the federal lawsuit for which Walsh and Lorge seek state indemnification. See Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 n.7 (Minn. 2000) (allowing a court analyzing a motion to dismiss under rule 12.02(e) to consider, in addition to the complaint, documents specifically referenced in the complaint). We also reference a summary-judgment decision in the federal lawsuit to the extent that it provides useful procedural background. See Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523, 530 (Minn. 2010) (stating appellate courts may take judicial notice of public records); see also Rohricht v. O’Hare, 586 N.W.2d 587, 589 (Minn. App. 1998) (stating district court did not err by taking judicial notice of opinions in an action underlying the legal malpractice action at issue), review denied (Minn. Feb. 24, 1999).


The state’s current position, according to its briefing in this case, is consistent with the position of the Band and the United States government: that the reservation includes the original 61,000 acres from the 1855 treaty and has not been diminished or disestablished.


The Minnesota municipal tort claims act, by contrast, provides that a municipality shall indemnify “any of its officers and employees, whether elective or appointive, for damages, including punitive damages ... 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. And section 466.01 specifies that “municipality,” as defined there, includes “any county.”


Walsh and Lorge contend that double indemnity coverage is not problematic, citing “overlapping coverage” in the insurance context as a structural example.


The state also submitted the summary-judgment decision by the federal district court in Mille Lacs Band of Ojibwe as supplemental authority, pointing to the federal court’s analysis on whether Walsh and Lorge are entitled to Eleventh-Amendment immunity. ––– F.Supp.3d at ––––, 2020 WL 7489475 at *18. Under the Eleventh Amendment, “only States and arms of the State possess immunity from suits authorized by federal law.” Id. (quoting N. Ins. Co. v. Chatham County, 547 U.S. 189, 193, 126 S. Ct. 1689, 1690, 164 L.Ed.2d 367 (2006)). The federal court applied this principle to conclude that Eleventh-Amendment immunity does not shield Walsh and Lorge from the Band’s claims, as they are not “ ‘arms of the state.’ ” Id. This analysis has limited applicability here though, as “arms of the state” and “employees of the state” are not the same—the latter, at issue here, is specifically defined in the Minnesota state tort claims act.


In examining the boundaries of Walsh and Lorge’s argument, it seems to necessarily lead to the conclusion that all county attorneys, county sheriffs, and, by extension, city attorneys and city law-enforcement officers are “employees of the state” within the meaning of the Minnesota state tort claims act—as all of these people prosecute violations of state law or enforce state laws. Indeed, Walsh and Lorge assert that, “when city attorneys prosecute misdemeanors, they do so on behalf of the state.” It appears that Walsh and Lorge try to limit the broad sweep of their proposition, though. They assert that, under their interpretation of “employees of the state”:
County employees may only be indemnified by the State when acting on behalf of the State in an official capacity. Much of the time, county employees would be within Chapter 466 [(the Minnesota municipal tort claims act)], assuming they act within the scope of their duties. But sometimes county employees act on behalf of the State in an official capacity and are consequently subject to indemnification by the State under Minn. Stat. § 3.736.
It appears that Walsh and Lorge suggest that county attorneys act for the county in civil matters, but for the state in criminal matters. Sheriffs’ acts must be parsed out further though, as Walsh and Lorge assert that they “may execute process on behalf of the State in the morning, and by lunchtime be serving civil summonses on behalf of the county or responding to the county’s medical calls.” Their interpretation, which distinguishes between actions in civil and criminal matters, finds no support in the plain language of the statute.


Although Walsh and Lorge seemed to assert in their letter requesting indemnification from the state that the Minnesota Attorney General’s Office delegated Walsh the task of issuing an opinion on the Mille Lacs Reservation boundary, they do not make that argument in this appeal. Even so, we note that the complaint and attached documents make clear that rather than “delegating” its own authority, the attorney general’s office simply declined to issue an opinion and left Walsh to perform his statutorily assigned duty to “give opinions and advice, upon the request of the county board or any county officer, upon all matters in which the county is or may be interested.” Minn. Stat. § 388.051, subd. 1. Consequently, the complaint does not give rise to a reasonable inference that the state delegated any of its own authority to Walsh.


In light of our analysis, we need not reach the state’s alternative argument that Walsh and Lorge could not have been acting on the state’s behalf because “the state agrees with the Mille Lacs Band of Ojibwe that the reservation is 61,000 acres.” And, in any event, that argument relies on an assertion outside of the record.