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EXERCISING DISCRETION <br />KEEPING RECORDS TO SUPPORT. IMMUNITY <br />By Jack Hennen, LMCIT Defense Attorney <br />What Is Statutory Discretionary Ir m <br />Pursuant to Minn. Stat. § 466.03, Subd. 6, a city is immune from liability for: "any claim based <br />upon the performance or ail re to exercise or per, f orm a discrefionaryfunction or duty whether <br />or not the discretion is abused. "' his a practical matter, the more it looks like discretion was <br />abused the more likely a court may determine that discretion was not exercised. <br />1` D A ;.r,'' Statutory Discretionary I I <br />Statutory discretionary immunity exists because local governments must make decisions. They <br />must make decisions on how to best spend taxpayers' money and to prioritize the use of limited <br />financial, personnel and other resources. Cities are constantly making decisions about ghat <br />services, programs or facilities should be offered or provided and decisions concerning what <br />services, programs or facilities should be improved. These decisions often have timetables <br />attached to them. In addition, them are frequently competing policy considerations concern, g <br />what a city should do. <br />Discretionary in�unuaity recognizes that difficult decisions sometimes need to be made. If a city <br />is &ely to be " arned if it does and darned if it doesn't," immunity should apply because the city <br />is making decisions that involve a weighing of competing political, social, economic or safety <br />factors., <br />Statutory discretionary immunity has its roots in the doctrine of the separation of veers. The <br />separation of powers doge requires that courts (the judicial branch of govermnent ) should not <br />be second guessing policy or planning decisions made by city council (legislative branch ) or by <br />those to whom the city council has delegated policy making or planning authority or difficult <br />4. <br />decisions that must be made by city administrators or other supervisory level olio making city <br />officials (executive branch). <br />p y g <br />What h A Discretionary Function or Duty? <br />Statutory immunity protects planning level decisions but does not ordinarily protect operational <br />level decisions. Statutory discretionary immunity may protect tactical and allocation of resource <br />decisions that are made by police and fire personnel. Statutory in imunity does not p rotect <br />