Stacey Marable, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1558

Stacey Marable,
Appellant,

vs.

City of Minneapolis,
Respondent,

Noah Schuchman, et al.,
Defendants,

Minneapolis Public Housing Authority,
Respondent.

Filed May 11, 2020
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CV-19-1488

John R. Shoemaker, Paul F. Shoemaker, Shoemaker & Shoemaker, PLLC, Bloomingto n,
Minnesota (for appellant)

Erik Nilsson, Interim Minneapolis City Attorney, Tracey N. Fussy, Sharda Enslin,
Assistant City Attorneys, Minneapolis, Minnesota (for respondent C ity of Minneapolis)

Kenneth H. Bayliss , Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondent
Minneapolis Public Housing Authority)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant public -housing tenant challenges the district court’s dismissal under
Minn. R. Civ. P. 12.02(e) of her various claims arising from respondent City of
Minneapolis’s and respondent Minneapolis Public Housing Authority’s alleged failures to
conduct housing inspections an d enforce the municipal housing-maintenance code on
properties owned by the Minneapolis Public Housing Authority. We affirm in part, reverse
in part, and remand for further proc eedings.
FACTS
Appellant Stacey Marable, a public-housing tenant , challenges the district court’ s
dismissal of her claims against respondents City of Minneapolis (Minneapolis) and the
Minneapolis Public Housing Authority (the MPHA) for failure to state a claim upon which
relief can be granted under Minn. R. Civ. P. 12.02(e). Marable’s action arises from
Minneapolis’s and the MPHA’s alleged failures to conduct housing inspections and enforce
or comply with the municipal housing-maintenance code. Marable argues that the district
court erred in concluding that : (1) the MPHA, and not Minneapolis, was the “local
authority” as contemplated under Minn. Stat. § 504B.185 (2018); (2) Marable failed to
state a claim for Minneapolis’s alleged violation of Minn. Stat. § 363A .12 (2018);
(3) Marable failed to state a claim that she was denied equal protection following
Minneapolis’s failure to inspect the properties at issue; (4) Marable failed to state a claim
that Minneapolis and the MPHA entered into a conspiracy to deny Marable access to public
inspection services; (5 ) Marable failed to state a claim against the MPHA , as all of her

3
claims were preempted by federal law; (6) Marable failed to state a claim that the MPHA
aided and abetted Minneapolis in violating Mi nn. Stat. § 363A.12; (7) Marable failed to
state a claim for enforcing Minneapolis’s housing-maintenance code against the MPHA;
and (8) Marable failed to state a claim against the MPHA , as all claims were barred by
official and discretionary immunity.
All of the following facts reflect allegations made by Marable in her complaint as
required by Minn. R. Civ. P. 12.02(e) . In 2013, Marable and her children moved into a
single-family home owned and operated by the MPHA and located on 16th Avenue South
in Minneapolis. The MPHA is an independent redevelopment agency responsible for
administering low-income housing programs primarily funded by the U.S. Department of
Housing and Urban Development (HUD) and is not a political or administrative
subdivision of the City of Minneapolis. See 1980 Minn. Law s ch. 595, § 2, at 1106
(authorizing Minneapolis to establish by ordinance an independent redevelopment agency).
In March 2017, Marable notified the MPHA about “roof deterioration, a hole in the
dwelling’s roof and mold contamination.” The next month, Marable hired an independent
specialist to conduct mold testing. The testing returned spore values that greatly exceeded
recommended safety thresholds. Following this testing, the MPHA conducted its own
mold testing and determined that the spore levels were safe. Marable sent multiple notices
of toxic mold contamination, and other examples of deterioration and disrepair, to the
MPHA. She requested that the MPHA repair the problems or relocate her and her children.
The MPHA denied her request and maintained that the property was safe and habitable.

4
In April 2017, Marable contacted Minneapolis regarding the conditions at her
property using the city’s “Minneapolis 311” system, which allows residents to report
housing-maintenance-code violations and request Minneapolis inspectors to inspect their
properties. While speaking with employees from “Minneapolis 311,” Marable was
informed that Minneapolis lacks the authority to inspect or enforce the municipal housing-
maintenance code inside properties owned and managed by the MPHA and that Marable
should contact the MPHA directly with her concerns. Following Minneapolis’s directio n,
Marable continued to contact the MPHA with complaints about the condition of the 16th
Avenue property. Eventually, the MPHA installed a new roof on the property. Shortly
after, Marable discovered mold under the tiles in her kitchen. The MPHA agreed to replace
the tiles as well.
In late October 2017, Marable hired a private housing insp ector to conduct an
inspection of the property. The inspector discovered over 20 housing-maintenance code
violations. In light of these results, Marable requested that the MPHA make repairs on the
property. Dissatisfied with the MPHA’s response to her c omplaints, Marable submitted
two “rental unit complaint forms” to Minneapolis via “Minneapolis 311”; Minneapo lis
failed to respond.
In December 2017, Marable again contacted the MPHA to request repairs. Before
the end of the year, the MPHA made two visi ts to inspect and conduct repairs on the
property. Unsatisfied, Marable contacted Minneapolis and requested an inspection in
January 2018 . Minneapolis did not respond to her request. Instead, Marable hired the
same private housing inspector, and he found additional code violations. M any of the code

5
violations he first identified in October 2017 had not been rectified. Marable contacted the
MPHA and submitted additional work orders; the MPHA returned to the property to
address at least some of the compl aints. While at the residence, the MPHA discovered
additional mold contamination and floor deterioration. Marable again requested to transfer
to a different property.
In April 2018, the MPHA granted her request and transferred Marable and her
family to a property owned and operated by the MPHA on Humboldt Avenue. After
moving, Marable noticed that the Humboldt Avenue property was infested with rodents
and had a f ailure of “basic water services ”; she informed the MPHA of both concerns.
Marable also contacted Minneapolis about the water issue and requested an inspection of
the Humboldt Avenue property. Minneapolis denied her request, once again informing
Marable that Minneapolis does not conduct inspections of , or enforce the municipal
housing-maintenance code on, MPHA properties.
In June 2018, Marable experienced leaking pipes and a problem with a basement
drain. She contacted the MPHA, which twice sent repair workers to the property. The next
month, Marable contacted Minneapolis once again, and Minneapolis denied her request for
an inspection. Shortly after, the MPHA’s regional property manager conducted an annual
federally mandated inspection on the Humboldt Avenue property. This inspection looked
for violations of federal, but not municipal, housing maintenance requirements. During the
inspection, the regional property manager explained to Marable that Minneapolis does not
conduct inspections on MPHA properties and does not accept complaints from MPHA
tenants; however, Marable could contact the regional property manager directly with any

6
future complaints. Shortly after the inspection, the MPHA informed Marable of the results.
At that same time, Marable hired the same private housing inspector, who identified 15
Minneapolis code violations in the Humboldt Avenue property—only three of which were
identified in the MPHA inspection.
In late July 2018, Marable contacted Minneapolis again and requested an inspectio n.
Minneapolis declined to perform one and informed Marable that she must contact the
MPHA directly about any issues related to the property.
Marable brought an action in Hennepin County District Court alleging seven counts
of wrongdoing by the MPHA, Minneapolis, and various officials. Minneapolis and the
MPHA both moved to dismiss the action for failure to state a claim upon which relief can
be granted under Minn. R. Civ. P. 12.02(e). The district court granted respondents’
motions.
Marable appeals.
D E C I S I O N
A complaint “shall contain a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.
P. 8.01. A district court must dismiss a complaint when the plaintiff “fail[s] to state a claim
upon which relief can be granted .” Minn. R. Civ. P. 12.02(e). “A Rule 12.02(e) motion
raises the single question of whether the complaint states a claim upon which relief can be
granted.” Martens v. Minn. Mining & Mfg. Co. , 616 N.W.2d 732, 739 (Minn. 2000).
“A claim is sufficient ag ainst a motion to dismiss for failure to state a claim if it is
possible on any evidence which might be produced, consistent with the pleader’s theory,

7
to grant the relief demanded.” Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 603 ( Minn.
2014). “To state i t another way, under this rule a pleading will be dismissed only if it
appears to a certainty that no facts, which could be introduced consistent with the pleading,
exist which would support granting the relief demanded.” Id. at 602 (emphasis omitted)
(quotation omitted). “[I]t is immaterial whether or not the plaintiff can prove the facts
alleged . . . .” Martens, 616 N.W.2d at 739. However , “[a] plaintiff must provide more
than labels and [legal] conclusions.” Bahr v. Capella Univ. , 788 N.W.2d 76 , 80 ( Minn.
2010).
“[Appellate courts] conduct a de novo review of a Rule 12 dismissal.” Krueger v.
Zeman Constr. Co. , 781 N.W.2d 858, 861 (Minn. 2010) . We “consider only the facts
alleged in the complaint, accepting those facts as true and must constr ue all reasonable
inferences in favor of the nonmoving party.” Bahr, 788 N.W.2d at 80 (quotation omitted).
In order to determine whether Marable’s complaint sufficiently states claims for
which relief can be granted under Minn. R. Civ. P. 12.02(e), we m ust begin this opinio n
by trying to answer one simple question: if the Minneapolis housing-maintenance code
applies to MPHA propert ies, and we conclude that it does, who enforces this code? Is it
Minneapolis or the MPHA? Both respondents deny it is their responsibility and assert that
it is the responsibility of the other respondent. We conclude that the municipal housing-
maintenance code does apply to MPHA properties, and that Minneapolis has the
responsibility for enforcing it.

8
Claims against City of Minneapolis
I. The district court erred when it determined as a matter of law that Minneapolis
was not the “local authority charged with enforcing” the housing-maintena nce
code on Marable’s properties.

Marable claims that the district court erred when it determined that, as a matter of
law, Minneapolis is not the “ local authority charged with enforcing” the housing-
maintenance code, and thus inspecting her properties, under Minn. Stat. § 504B.185. We
agree.
Statutory interpretation is a matter of law tha t we review de novo. Pepper v. State
Farm Mut. Auto. Ins. Co., 813 N.W.2d 921, 925 (Minn. 2012). When interpreting a statute,
we first look to the language of the statute to determine whether, on its face, the statute is
ambiguous. Am. Tower, L.P. v. City of Grant , 636 N.W.2d 309, 312 (Minn. 2001). An
ambiguity exists only when a statute’s language is subject to more than one reasonable
interpretation. Hans Hagen Homes , Inc. v. City of Minnetrista , 728 N.W.2d 536, 539
(Minn. 2007).
When construing the language of a statute to determine whether ambiguity exists,
courts generally give words and phrases their plain and ordinary meaning and construe
them according to rules of grammar. Minn. Stat. § 645.08(1) (2018); Am. Tower , 636
N.W.2d at 312. Where the legislature’s intent is clear from the plain and unambiguo us
language of the statute, courts apply the plain meaning. Hans Hagen Homes, 728 N.W.2d
at 539. “If the meaning of statutory language is not plain, courts resolve ambiguity b y
looking to legislative intent, agenc y interpretation,” and other ca nons of statutory

9
construction. Occhino v. Grover, 640 N.W.2d 357, 360 (Minn. App. 2002), review denied
(Minn. May 28, 2002).
Minn. Stat. § 504B.185, subd. 1, states: “If requested by a residential tenant . . . an
inspection shall be made by the local authority charged with enforcing a code claimed to
be violated.” Although the statute does not explicitly list who qualifies as a “local
authority,” it does state that a “local authority” i s an authority “charged with enforcing a
code claimed to be violated.” Minn. Stat. § 504B.185, subd. 1. Thus, the local authority
in this statute must be an authority statutorily authorized to enforce municipal housing-
maintenance-code violations. Both Minneapolis and the MPHA deny that they are the
authority statutorily authorized to enforce the municipal housing-maintenance code on
MPHA properties.
The district court did not assess which entity is statutorily authorized to enforce the
municipal housing-maintenance code when it determined that the MPHA was the local
authority in the context of Minn. Stat. § 504B.185. Instead, the district court concluded
that because housing authorities are sometimes classified as “local authorit [ies],” and
municipal entities are able to enforce municipal codes against themselves (though when
statutorily charged with doing so) , then the MPHA must be the local authority to which
the statute applied. But the district court’s analysis focuses only on the meaning of “local
authority” and does not consider the subsequent dependent clause that modifies “local
authority,” namely “charged with enforcing a code .” Accordingly, the plain meaning of
the statute limits its application to not merely local authorities, but rath er local authorities

10
authorized to enforce the provisions of the municipal code .1 See Minn. Stat. § 645.16
(2018) (“When the words of a law in their application to an existing situation are clear and
free from all ambiguity, the letter of the law shall not be disregarded under the pretext of
pursuing the spirit.”).
A. Minneapolis is the local authority charged with enforcin g the municipal
housing maintenance code.

Minneapolis is a home rule charter city. See Minn. Const. art. XII, § 4 (allowing
“[a]ny local government unit . . . [to] adopt a home rule charter for its government”); Minn.
Stat. § 410.04 (2018) ( stating that “[a]ny city in the state may frame a city charter for its
own government in the manner” prescribed by chapter 410). Pursuant to its charter
authority, Minneapolis enacted a housing-maintenance code “to protect the public health,
safety and welfare” of the people of Minneapolis. Minneapolis, Minn., Code of Ordinances
(MCO) § 244.20 (2019).
In Minneapolis, the director of regulatory services, or his or her designee, is required
by ordinance to enforce the municipal housing-maintenance code. MCO § 244.120 (2019).
Though “designee” is not defined, the “director or regulatory services” is defined as either

1 Minneapolis cites to several cases that define a housing authority as a local authority that
administers a HUD program; however, these cases do not define a housing authority as a
local authority charged with enforcing a municipal code. We agree that the MPHA can be
a local authority; yet Minn. Stat. § 504B.185 applies not merely to local authori ties, but
local authorities charged with enforcing a municipal housing code . See Peterson v. Wash.
Cty. Hous. & Redevelopment Auth. , 805 N.W.2d 558, 561 (Minn. App. 2011) (stating that
housing authorities are local government agencies that administer HUD programs), review
denied (Minn. Oct. 26, 2011); Edwards v. Hopkins Plaza Ltd. P’ship , 783 N.W.2d 171,
177 (Minn. App. 2010) (stating that a redevelopment authority is a local authority charged
with administering HUD programs).

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the “ legally designated director” or an “authorized representative” of the director of
regulatory services. MCO § 244.40 (2019). An “authorized representative” is not defined
in the ordinance. However, turning to the dictionary, “authorize” is defined as “ [t]o grant
authority or power to.” The American Heritage Dictionary 120 (5th ed. 2011).
Furthermore, “representative” is defined as “ [o]ne that serves as a delegate or agent for
another.” Id. at 1490. Neither the language of the ordinance, nor any state statute, limits
which entity can be designated as an “authorized representative.” Accordingly, the director
of regulatory services is free to designate an independent body as a representative.
However, this designation must be authorized. Therefore, we conclude that an
authorization requires an active and intentional delegation of authority from the director of
regulatory services to an agent of that authority.
Although no formal pathway for the delegation of enforcement authority is
described by ordinance, th e city council has determined that one authorized representative
of the director of regulatory services is the director of inspections. See MCO § 28.10 (2019)
(establishing the department of inspections). The director of inspections is required to
appoint and remove “duly appointed and qualified inspectors ” and assistants as provided
by the city council. MCO §§ 28.20-.30 (2019). Although the director of inspections is
authorized to delegate his or her power to enforce municipal codes, this authorization is
limited to “assistants.” MCO § 28.60 (2019). An “assistant” is defined as someone who
is explicitly authorized “[t]o assist in the administration of the department ,” and is
appointed by “the director of inspections . . . as shall be provided by the c ity council. ”
MCO § 28.30. Additionally, assistants “perform such duties as shall be assigned by the

12
director of inspections, ” id., and thus are limited to employees of the director of
inspections. Accordingly, the director of inspections is not authorized to delegate
enforcement authority outside of the department of inspections.
In contrast, the MPHA is an independent local governmental agency located within
the geographic boundary, though not the political body, of Minneapolis. See Minn. Stat.
§§ 469.001-.047 (2018) (outlining the state’s housing and redevelopment authority
programs). Though local in nature, federal law authorizes redevelopment authorities, such
as the MPHA, to administer HUD ho using programs. See, e.g. , 42 U.S.C. §§ 1437f,
3535(d) (2018) (authorizing local authorities to administer the Section 8 housing voucher
program).
Federal regulations dictate minimum standards for HUD housing, directing that the
properties be “decent, safe, sanitary and in good repair.” 24 C.F.R. § 5.703 (2019). Federal
regulations also require local housing programs, such as the MPHA, to “comply” with and
“adhere” to state and local codes . Id. (g) (emphasis added). Although federal regulatio ns
do no t explicitly authorize redevelopment authorities to enforce municipal housing-
maintenance codes, the regulations require redevelopment authorities and cities to enter
into cooperative agreements regarding the administration of programs . 24 C.F.R.
§ 905.602(a) (2019) (“ [T]he [redevelopment authority] must enter into a cooperation
agreement with the applicable local governing body that includes sufficient authority to
cover the public housing being developed under this subpart . . . .”). Finally, state law
provides that all redevelopment authority projects “shall be subject to the planning, zoning,
sanitary, and building laws, ordinances, and regulations applicable to the locality in which

13
the project is situated .” Minn. Stat. § 469.012, subd. 4. Although a redevelop ment
authority “may recommend to the city concerning the enforcement of the applicable health,
housing, building, fire prevention, and housing maintenance code requirements,” id.,
subd. 2d, state law does not grant these agencies the independent authority to enforce these
codes.
The district court relied on United States v. City of St. Paul for the proposition that
a city may not unilaterally impose a municipal housing-maintenance code on a HUD -
owned and operated property. 258 F.3d 750, 75 4 (8th Cir. 2001). However, St. Paul does
not necessitate an unquestioning ceding of state authority to the federal government .
Instead, St. Paul clearly states that where a federal statute fails to give “clear and
unambiguous authorization” for municipal ordinances to apply to HUD-owned properties,
cities are prohibited from subjecting HUD to a patchwork of local regulations. Id. at 753-
54. However, because HUD regulations explicitly and unambiguously direct all
redevelopment authorities to adhere to the municipal housing-maintenance code, we find
St. Paul inapplicable.
Therefore, as the MPHA is not statutorily charged with enforcing Minneapolis’s
housing-maintenance code by federal or state law, and the MPHA is directed by federal
law to adhere to the municipal housing-maintenance code, we conclude as a matter of law
that Minneapolis, and not the MPHA, is the “local authority charged with enforcing” the
municipal housing-maintenance code as contemplated under Minn. Stat. § 504B.185.

14
B. Minneapolis has not delegated the authority to enforce Minneapolis ’s
housing-maintenance code to the MPHA.

Although the department of regulatory services is free to designate the MPHA as an
authorized representative, and to delegate enforcement authority to the MPHA, we can find
no authorized delegation of specific enforcement authority between the MPHA and
Minneapolis.
In her complaint, Marable alleges the existence of an agreement between the MPHA
and Minneapolis regarding the inspection enforcement of the municipal housing-
maintenance code on MPHA properties. Minneapolis points to a cooperation agreement
between the MPHA and Minneapolis to support its argument that the MPHA is the local
authority charged with enforcing the municipal housing-maintenance code as contemplated
under Minn. Stat. § 504B.185 , as the MPHA is defined as a local authority in the
agreement. However, we have already determined that just because the MPHA may be a
local authority charged with administering HUD programs does not mean that the MPHA
is also a local authority charged with enforcing the municipal housing-maintenance code.
Conversely, the MPHA points to a provision of the very same cooperation
agreement to argue that although Minneapolis remains the local authority charged with
inspecting and enforcing the municipal housing-maintenance code, the MPHA is somehow
exempt from being subject to municipal inspections and code enforcement by Minneapo lis
and thus does not assume any inspection or enforcement authority . We recognize that
Minneapolis is authorized by state and federal statute to enter into a cooperation agreement
with the MPHA and that Minneapolis and the MPHA have maintained such an agreement

15
since 1957. However, the explicit text of the provision at issue does not suppor t either
party’s arguments.
The text of the exemplar cooperation agreement presented in the record
acknowledges a general need to cooperate as the entities “may find necessary in connectio n
with the development and administration” of housing projects. Furthermore, the text also
states that “[i]n so far as the municipality may lawfully do so,” the municipality shall “grant
such deviations from the building code of the Municipality as are reasonable and necessary
to promote economy and efficiency in the d evelopment and administration” of an MPHA
project. (Emphasis added.)
The first problem we identify with relying on this provisio n to support either
respondent’s arguments is that this provision recognizes that deviations may be lawfully
granted from the Minneapolis building code , not the Minneapolis housing-maintenance
code at issue here. The Minneapolis housing-maintenance code is an utterly different code
than the Minneapolis building code. Compare MCO §§ 85.10-.650 (2019) (establishing
and detailing the Minneapolis building code) , with MCO §§ 244.10-.2170 (2019)
(establishing and detailing the Minneapolis housing-maintenance code). Accordingly, we
are not persuaded that the text of this provision even applies to the claims raised by
Marable.
Furthermore, even if we were to determine that a provision authorizing a deviatio n
from the municipal building c ode also permits the respondents to deviate from the
municipal housing-maintenance code, the provision is explicitly limited to only allowing
deviations in so far as the municipality may lawfully do so. The cooperation agreement

16
does not further address issues related to the inspection of MPHA properties or the
enforcement of the municipal housing-maintenance code. Although this language
recognizes that the authorized delegation of enforcement authority consistent with the
delegation pathway established by Minneapolis ordinance is permissible, this recognitio n
alone, without any subsequent provision detailing a deviation or delegation of authority, is
not sufficient to indicate that the MPHA is either an authorized representative of the
director of regulatory services or exempted from compliance with the municipal housing-
maintenance code.2
Therefore, in light of Minneapolis’s ordinance that explicitly defines the delegatio n
of enforcement authority under the limited circumstances of an authorized representative ,
and the MPHA’s assertion that it is not an authorized representative, we conclude that the
cooperation agreement between Minneapolis and the MPHA did not delegate enforcement
authority from the director of regulatory services to the MPHA. Absent some cooperation
agreement that explicitly lays out the responsibilities of either Minneapolis or the MPHA
to enforce the municipal housing-maintenance code, we conclude that Minneapolis, and

2 This conclusion is all but necessitated by the fact that the MPHA denies any authority to
enforce Minneapolis’s housing-maintenance code on MPHA properties. Furthermo re,
Minneapolis fervently contends that “MPHA inspectors do not now nor have they ever
been employees of the City”—let alone authorized representatives delegated enforcement
authority—and “ the MPHA plays no role in adopting or enforcing” the municipal housing-
maintenance code. Furthermore, while the MPHA denies that it enforces the housing code
on its properties, it nevertheless recognizes that it is required by federal law to comply and
adhere to the municipal code. Finally, Minneapolis’s former director of inspectio ns
confirmed that the MPHA has never been employed by the department of regulato ry
services and that the MPHA has never been “in [the] chain of command” of the department
of inspections.

17
not the MPHA, remains the local authority charged with enforcing its housing-maintenance
code on MPHA properties.
II. The district court erred when it determined that Marable’s complaint failed to
state a claim for Minneapolis’s alleged violation of Minn. Stat. § 363A.12.

Marable argues that the district court erred when it determined, as a matter of law,
that she failed to state a claim for Minneapolis’s alleged violation of Minn. Stat. § 363A.12
because Minneapolis was not the local authority charged with enforcing the housing
maintenance code . As we have determined that Minneapolis is that local authority, we
must now assess whether Marable’s complaint sufficiently stated a claim for Minneapolis’s
violation of Minn. Stat. § 363A.12 upon which relief could be granted.
The Minnesota Human Rights Act (the MHRA) provides that it is unlawful to
“discriminate against any person in the access to, admission to, full utilization of or benef it
from any public service because of . . . status with regard to public assistance.” Minn. Stat.
§ 363A.12, subd. 1. A “public service” includes “any public facility, department, agency,
board or commission, owned, operated or managed by or on behalf of the state of
Minnesota.” Minn. Stat. § 363A.03, subd. 35 (2018). Housing inspections fall under the
category of a “public service.” Cf., Cracraft v. City of St. Louis Park, 279 N.W.2d 801 ,
805 (Minn. 1979) (determining that a municipality has a public duty to conduct fire
inspections).
In City of Minneapolis v. Richardson , the supreme court noted that an unfair
discriminatory practice in violation of the MHRA may occur when “the record establishes
. . . an adverse difference in treatment with respect to public services of one or more persons

18
when compared to the treatment accorded others similarly situated except for the existence
of an impermissible factor such as race, color, creed, sex, etc.” 239 N.W.2d 197, 202
(Minn. 1976).
Marable’s complaint alleges that, while as a recipient of public assistance, Marable
was denied access to municipal code inspections and enforcement by Minneapo lis
explicitly because of her public -assistance status. Marable states that she reported code
violations through “Minneapolis 311,” requested a municipal inspection of her properties
on several occasions, and was denied these services—services to which other residents of
Minneapolis are entitled —because Minneapolis do es not provide inspe ction services
within MPHA properties to MPHA tenants. Marable’s complaint also contends the
existence of an arrangement between Minneapolis and the MPHA in which Minneapo lis
refused to inspect MPHA properties and instead directed all complaints to the MPHA. This
agreement, Marable alleges, only applies to individuals who receive public assistance
through their tenancy with the MPHA. Accordingly, Marable’s complaint states that
Minneapolis uses the classification of an individual receiving housing assistance to limit
the rights of those individuals to access a public service from Minneapolis relative to the
ability of a private tenant to access the same service.
Because Minn. Stat. § 504B.185, subd. 1, mandates a city to provide inspe ctio n
services upon a tenant’s request of those services, and Marable’s complaint details
circumstances in which Marable was denied access to inspection services because of her
public-assistance status , we hold that the complaint contains sufficient facts to support a
claim for the violation of Minn. Stat. § 363A.12, subd. 1. Accordingly, the district court

19
erred when it determined that Marable’s claim against Minneapolis for violation of Minn.
Stat. § 363A.12, subd. 1, failed under Minn. R. Civ. P. 12.02(e). Regardless of whether
Marable ultimately succeeds on her claim, her allegations in the complaint are sufficient
to, at the minimum, state a claim for relief.
III. The district court erred when it determined that Marable failed to state a claim
for the denial of equal protection.

Marable argues that the district court erred when it determined that Marable failed
to sufficiently allege an equal -protection violation under the rational -basis standard.
Minneapolis argues that the district court properly determined that Minneapolis had a
rational basis for treating MPHA and non -MPHA tenants differently so as to a llow HUD
programs to be implemented uniformly.
The Minnesota Constitution guarantees that “ [n]o member of this state shall be
disfranchised or deprived of any of the rights or privileges secured to any citizen thereof,
unless by the law of the land or the judgment of his peers. ” Minn. Const. art. I, § 2. An
equal-protection analysis “begin[s] with the mandate that all similarly situated individ uals
shall be treated alike, but only invidious discrimination is deemed constitutionally
offensive.” Kolton v. County of Anoka , 645 N.W.2d 403, 411 (Minn. 2002) (quotatio ns
omitted). When an equal -protection challenge does not implicate a fundamental right or a
suspect classification, a reviewing court applies a rational -basis standard. Greene v.
Comm’r of Minn. Dep’t of Human Servs., 755 N.W.2d 713, 725 (Minn. 2008).
Unlike the federal rational-basis standard, which requires only that a court assess
“whether the challenged classification has a legitimate purpose and whether it was

20
reasonable for the lawmakers t o believe that use of the challenged classification would
promote that purpose,” Minnesota applies a more stringent standard and is unwilling to
merely “hypothesize a rational basis to justify a classification, as the more deferential
federal standard requ ires.” Id. at 729 (quotations omitted). Instead, Minnesota courts
“require[] a reasonable connection between the actual, and not just the theoretical, effect
of the challenged classification and the statutory goals.” Id. (quotation omitted).
Additionally, a party may raise an equal-protection challenge to an ordinance based on an
ordinance’s application and not merely its express ed terms. See State v. Frazier, 649
N.W.2d 828, 832-33 (Minn. 2002) (discussing an as-applied challenge to a facially neutral
statute).
As the district court determined that Minneapolis was not the “local authority”
charged with enforcing the housing-maintenance code on MPHA properties, it concluded
that public tenants and private tenants were not similarly situated, and thus Marable’s claim
did not implicate or violate equal protection. However, as we have concluded that
Minneapolis is the local authority charged with enforcing the housing-maintenance code,
and thus Minneapolis is required to inspect and enforce the housing-maintenance code for
tenants of private and MPHA -owned properties, failure to inspect properties of MPHA
tenants due to their statu s as MPHA tenants constitutes dissimilar treatment of similarly
situated people.
Relying on St. Paul, the district court determined that even if Marable and a non -
MPHA tenant were similarly situated, a rational basis existed for the differential treatment
because “HUD must be able to carry out its federal function s in a uniform way” and

21
“[s]ubjecting HUD to the array of local ordinances and laws across the United States would
make such uniformity impossible.” Quoting Kottschade v. City of Rochester , the district
court stated that the government need only articulate a “rational relation to a legitimate
government objective” when conducting a rational -basis review. 537 N.W.2d 301, 306
(Minn. App. 1995) (quotation omitted), review denied (Minn. Nov. 15, 1995). Though a
correct statement of law, Kottschade relies on the federal standard, and not the more
restrictive standard applied in Minnesota, when determining what constitutes a rational
basis. As Marable’s claim is under the Minnesota Constitution, we must determine whether
there is “a reasonable connection between the actual, and not just the theoretical, effec t of
the challenged classification and the statutory goals.” State v. Russell, 477 N.W.2d 886,
889 (Minn. 1991).
Minnesota’s rational review necessitates that a court ask three questions:
(1) whether the distinctions that separate those included within the classification from those
excluded are not arbitrary, but are genuine and substantial; (2) whether there is an evident
connection between the distinctive needs of the class and the prescribed remedy; and
(3) whether the purpose of the statute is one that the state can legitimately attempt to
achieve. Greene, 755 N.W.2d at 729.
In her complaint, Marable states that she was denied equal protection of the law
when Minneapolis failed to send an inspector or to identify code violations within her
home, a se rvice provided to all residents of the city, because she was a tenant on MPHA
properties. Marable claims that she was told by Minneapolis staff that the city has no
authority to conduct inspections or to enforce the municipal housing-maintenance code on

22
MPHA properties. Marable correctly notes that public -housing tenants and private -
housing tenants are entitled to the same services and protections under Minnesota’s
landlord-tenant laws. See, e.g. , Minn. Stat. § 504B.001, subd. 12 (2018) (defining a
residential tenant as a person who occupies a dwelling in a residential building under a
lease or contract that requires the payment of money or the exchange of services); Minn.
Stat. § 504B.275 (2018) (directing the attorney general to prepare an educational statement
notifying residential tenants in public housing to consult their leases for additional rights
and obligations as provided by federal law in addition to the rights granted to them as
Minnesota tenants). Additionally, she states that Minn. Stat. § 504B.185, subd. 1, provides
a nondiscretionary statutory duty for the local authority to conduct code inspections upon
a request from a resident.
Nevertheless, even if Marable has sufficiently pleaded dissimilar treatment in the
enforcement of Minn. Stat. § 504B.185, subd. 1, such treatment may still be permissible so
long as there is a “reasonable connection between the actual, and not just the theoretical,
effect of the challenged classification and the statutory goals.” Russell, 477 N.W.2d at 889.
The goal of the municipal housing-maintenance code is to “protect the public health,
safety and welfare” of the citizens and to “[p]rovide[] for administration and enforcement. ”
MCO § 244.20. As Minneapolis acknowledges, there are limited resources and a
significant unmet need for inspections and code enforcement within the city. Additionally,
MPHA properties are subject to yearly inspections mandated by the terms of several federal
housing programs that fund the properties . See 42 U.S.C. § 1437d(f)(1) -(3) (2018).
Though the safety requirements of these federal programs are minimum standards, and the

23
regulations dictate that they do not preempt more restrictive municipal codes , Marable’s
complaint alleges that Minneapolis decided to forgo enforcement responsibility and instead
rely on, essentially, the federal minimum health and safety standards for MPHA properties.
Thus, Minneapolis directed individuals to submit their complaints directly to the MPHA,
which could then fix the reported problems, thereby cutting out any intermediary.
However, as Minneapolis and the MPHA both disclaim enforcement authority, Marable, a
similarly situated individual to a private tenant, has sufficiently pleaded facts to support a
claim for the denial of municipal housing-maintenance-code inspection and enforcement
services.
Although the method currently relied on by Minneapolis to cede inspection and
enforcement authority to the MPHA is contra ry to state and municipal law, we freely
acknowledge that a reasonable connection may exist between Minneapolis’s general goal
of providing for the safety and welfare of all citizens, and a cooperative distribution of
enforcement and inspection resources. However, in the context of Marable’s claim for a
denial of equal protection, a valid delegation of this enforcement authority that satisfies the
health and safety goals of the municipal housing-maintenance code must first exist before
the rational basis of the decision can be assessed . Therefore, even if a valid delegatio n
agreement may not violate equal protection, Marable’s claims as to Minneapolis’s failure
to inspect Marable’s property , or enforce the municipal housing-maintenance code
thereupon, without a legally sufficient delegation agreement sufficiently state a claim for
which relief can be granted.

24
We conclude that even if this record sufficiently demonstrates a reasonable
connection between the differential treatment of MPHA tenants and the general
enforcement goals of Minneapolis’s housing-maintenance code to promote the public
health, safety, and welfare of all residents when outlined under a valid delegatio n
agreement, absent such an agreement delegating that responsibility to the MPHA, the
differential treatment of MPHA and non -MPHA tenants under Minneapolis’s
implementation of Minn. Stat. § 504B.185, subd. 1, sufficiently states a claim for the denial
of equal protection. Accordingly, the district court err ed when it dismissed Marable’s
equal-protection claim for failure to state a claim.
IV. The district court did not err when it dismissed Marable’s claim of a civil
conspiracy between Minneapolis and the MPHA for failure to state a claim.

Next, Marable argues that the district court erred when it dismissed her claim for an
“unlawful agreement” between the MPHA and Mi nneapolis for failure to state a claim
upon which relief could be granted because “numerous independent statutory torts” were
asserted in the complaint and therefore there was a sufficient underlying wrong on which
a claim of civil conspiracy could be sust ained. Minneapolis argues that the claim fails as
a matter of law because Marable failed to plead the elements nece ssary for a civil
conspiracy.
A civil conspiracy is defined as “a combination of persons to accomplish an
unlawful purpose or a lawful pur pose by unlawful means.” Lipka v. Minn . Sch. Emp s.
Ass’n, Local 1980, 537 N.W.2d 624, 632 (Minn. App. 1995), aff’d, 550 N.W.2d 618 (Minn.
1996). A civil conspiracy cannot stand on its own and instead must be based on an

25
underlying crime or intentional to rt. Harding v. Ohio Cas. Ins. Co. , 41 N.W.2d 818, 824
(Minn. 1950). Even if individuals are maliciously motivated, there can be no conspiracy
if the individuals have a right to achieve the goal to which they “conspire.” Id. at 825.
Additionally, the alleged conspirators must have a meeting of the minds regarding “a plan
or purpose of action to achieve the contemplated result.” Bukowski v. Juranek, 35 N.W.2d
427, 429 (Minn. 1948).
The district court determined that Marable failed to state a claim as to the alleged
agreement between Minneapolis and the MPHA regarding enforcement authority because
even if the agreement is classified as part of a civil conspiracy to deprive MPHA tenants
of equal protection and/or to violate Minn. Stat. § 363A.12, Marable has failed to plead the
underlying tort or criminal action necessary to sustain a claim for a civil conspiracy.
On appeal, Marable argues that she pleaded “at least one viable underlying tort”
(though not an intentional tort) so as to support h er claim that the agreement between
Minneapolis and the MPHA constituted a civil conspiracy. Although Marable cites to no
caselaw to support the proposition that Minneapolis’s alleged violation of a statutory duty
constitutes an intentional tort for the p urpose of sustaining a civil -conspiracy claim, she
points to the statutory tort of the alleged violation of Minn. Stat. § 363A.12, subd. 1. Even
if we determine that a civil conspiracy can be based on an alleged violation of Minn. Stat.
§ 363A.12, subd. 1 , we hold that Marable has not pleaded the facts necessary to support a
claim for civil conspiracy.
To support a claim for civil conspiracy, Marable need only show that there was a
meeting of the minds to accomplish a lawful goal th rough unlawful means, or to

26
accomplish an unlawful goal. Harding, 41 N.W.2d at 824. Marable argues that the alleged
existence of an agreement between the MPHA and Minneapolis to delegate inspection and
enforcement authority to the MPHA allows us to reasonably infer that it w as the intent of
the parties to deprive tenants of their statutory right to requesting inspections and reporting
violations of the municipal code.
But the complaint does not allege any facts that can lead to the reasonable inference
that there was a meet ing of the minds to intentionally deprive MPHA tenants of civil
services, and not merely an intention to administer and enforce those services through a
different agency —a delegation permitted under certain circumstances by municipal
ordinance. As Marable has failed to plead facts that can support a reasonable inference
that the MPHA and Minneapolis intentionally entered into an agreement to achieve a lawful
goal through unlawful means, we hold tha t the district court did not err when it dismissed
Marable’s claim for civil conspiracy.
Claims against the MPHA

V. The district court erred when it determined as a matter of law that Marable’s
claims against the MPHA are preempted by federal law.

Marable argues that the district court erred when it determined that Minn. Stat.
§ 504B.185, subd. 1, is preempted by federal law. 3
The Supremacy Clause of the United States Constitution provides that federal law,
and federal regulations that carry the force of law, preempts state law when Congress

3 Although Marable’s brief characterizes this issue as against both Minneapolis and the
MPHA, the district court only determined that her claims against the MPHA, as the local
authority charged with enforcing housing-maintenance codes, were preempted.

27
intends it to do s o. Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta , 458 U.S. 141, 152 -53,
102 S. Ct. 3014, 3022 (198 2). Accordingly, the activities of federal entities are shielded
from direct state regulation by the Supremacy Clause absent “clear and unambiguo us”
authorization for state regulation. St. Paul, 258 F.3d at 752 (quotation omitted).
Minn. Stat. § 504B.185, subd. 1, provides: “ If requested by a residential tenant . . .
an inspection shall be made by the local authority charged with enforcing a code claimed
to be violated.” Furthermore, Minnesota statutes acknowledge that public-housing tenants
may be entitled to rights in addition to the rights that all tenants are afforded under state
law. See Minn. Stat. § 504B.275 (directing the at torney general to inform public-housing
tenants to “consult their leases for additional rights and obligations they may have under
federal law”). Therefore, federal regulations offer additional, though not exclusive, rights
to public-housing tenants.
Federal law also dictates that redevelopment authorities that administer federal
programs are required to conduct yearly inspections of properties to determine whether the
units are maintained in accordance with the standards prescribed under federal law. 42
U.S.C. § 1437d(f)(1)-(3). There are no statutes that directly address the manner by which
a tenant may request an additional inspection of a property by a housing authority for
violations of a municipal housing-maintenance code. See generally 42 U.S.C. §§ 1437 to
1437z-10 (2018). However, HUD has promulgated regulations related to the physical
conditions of public housing and the inspection thereof. See 24 C.F.R. § 5.703
(establishing minimum standards for the physical conditions of HUD housing); 24 C.F.R.

28
§ 902.20 (2019) (providing for an assessment of the minimum physical conditions of HUD
housing).
Importantly, 24 C.F.R. § 5.703(g) states: “ The physical condition standards in this
section do not supersede or preempt State and local codes for building and maintenance
with which HUD housing must comply. HUD housing must continue to adhere to these
codes.” (Emphasis added .) As this regulation, which carries the force of law,
unambiguously and explicitly state s that the standards articulated therein do not preempt
or supersede local building and maintenance codes, Minn. Stat. § 504B.185, subd. 1, is not
preempted by federal law.
The district court relied on United States v. City of St. Paul, when it determined that
Marable’s claims against the MPHA were barred by feder al conflict preemption. The
district court reasoned that “[i]mposing a City -run inspection framework on federally -
funded public housing would impermissibly interfere with federal public housing policy
goals.” As a state or local law “is preempted by mean s of conflict preemption if the . . .
law is an obstacle to achieving the purpose of a federal law,” and “[t]he relief sought by
[Marable] that the City inspect and enforce the city code on MPHA properties would
burden federal public housing with a compreh ensive, highly duplicative inspection and
enforcement regime,” the district court determined that Minneapolis’s inspection scheme
was federally preempted. However, this reliance is misplaced , as St. Paul is easily
distinguishable from the case at issue.
In St. Paul , the Eighth Circuit determined that a statutory provision authorizing
HUD to foreclose on some federally owned properties, which stated in part, “any such

29
acquisition of real property shall not deprive any State or political subdivision thereo f of
its civil or criminal jurisdiction in and over such property,” was not a clear and
unambiguous declaration of the intent of Congress to allow a city to subject the property
to the city’s nuisance a batement code. 258 F.3d at 753 -54. Instead, the purp ose of the
provision was nothing more than an attempt by Congress to prevent “certain federal
property as acquired [from being considered] a ‘federal enclave’ so as to deprive the host
state of all civil and criminal jurisdiction.” Id. at 754. The Eighth Circuit concluded that
the statute did not provide “clear and unambiguous authorization for St. Paul to apply its
nuisance abatement ordinance to HUD” because the agency “cannot be subjected to a vast
multitude of municipal ordinances throughout the Unite d States which . . . require the
federal government to spend federal funds.” Id. at 753-54.
Unlike t he statute at issue in St. Paul , which did not contain any language that
explicitly stated that the provisions therein were not to preempt any state or local codes, 24
C.F.R. § 5.703(g) explicitly directs that the federal re gulations do not preempt any state or
local codes. This clear and unambiguous authorization to states and municipalities to
continue to apply state and municipal codes alone is sufficient to suggest that Minn. Stat.
§ 504B.185, subd. 1, is not conflict preempted by federal law.
Additionally, in St. Paul, the Eighth Circuit noted a significant concern was
subjecting the federal agency to a national patchwork of local code regulations absent
specific congressional instruction. Id. at 754. However, in the case at issue, HUD has
explicitly stated that properties like the ones owned by the MPHA remain subject to state
and local housing-maintenance codes. See also Hous. & Redevelopment A uth. of Duluth

30
v. Lee, 852 N.W.2d 683, 687-88 (Minn. 2014) (holding that a provision of the federal public
housing chapter did not preempt state law regarding late fees because the federal statute
created a minimum standard).
Therefore, as 24 C.F.R. § 5.70 3 (establishing minimum standards for the physical
conditions of HUD housing) contains specific provisions that clearly and unambiguo usly
affirm that federal regulations are not preempted by state or local law, the district court
erred when it determined t hat Minn. Stat. § 504B.185, subd. 1, is preempted by federal
housing law.
VI. The district court did not err when it determined that Marable failed to state
a claim for which relief could be granted for the MPHA’s aiding and abetting
of Minneapolis’s alleged violation of Minn. Stat. § 363A.12, subd. 1 .

Marable argues that the district court erred when it determined that she failed to
state a claim that the MPHA aided and abetted Minneap olis in violating Minn. Stat.
§ 363A.12, subd. 1.
It is an unlawful and unfair discriminatory practice to “ intentionally . . . aid, abet,
incite, compel, or coerce a person” to violate the MHRA. Minn. Stat. § 363A.14(1) (2018).
An individual or entity is liable for aiding and abetting a violation of the MHRA when that
individual or entity: (1) gives substantial assistance or e ncouragement to another and
(2) knows that the other’s conduct constitutes a violation of the MHRA. Matthews v.
Eichorn Motors, Inc. , 800 N.W.2d 823, 830 (Minn. App. 2011). However, “a viable
discrimination claim is a prerequisite to a claim of aiding and abetting discrimination.” Id.
The district court determined that Marable failed to state a claim upon which relief
could be granted because: (1) Minneapolis did not violate Minn. Stat. § 363A.12, subd. 1;

31
(2) the MPHA lacks the authority to enforce municipal ordinances or determine city policy;
and (3) Minneapolis and the MPHA did not enter into an unlawf ul agreement. Although
we have concluded that Marable succeeded in stating a claim for Minneapolis’s alleged
violation of Minn. S tat. § 363A.12, subd. 1, Marable’s complaint does not support a
reasonable inference that the MPHA knew Minneapolis’s conduct violated the MHRA.
Additionally, we are not persuaded by Marable’s argument that the existence of a legally
permitted, though ultimately flawed, cooperation agreement between Minneapolis and the
MPHA regarding enforcement demonstrates that the MPHA knew that the agreement was
unlawful or that the MPHA knew that Minneapolis’s failure to respond to MPHA tenants
likely constituted a violation of the MHRA. As a successful aiding -and-abetting claim
requires a showing of this specific knowledge, id., the district court did not err when it
determined that Marable had failed to state a claim for which relief could be granted.
VII. The district court erred when it determined that Marable failed to state a claim
against the MPHA for failure to adhere to Minneapolis’s housing-maintena nce
code.

Marable argues that the district court erred when it determined that she failed to
state a claim for which relief could be granted because her claim that the MPHA failed to
adhere to Minneapolis’s housing-maintenance code was conflict preempted.
Any individual with standing “ may seek enforcement thereof in any court of
competent jurisdiction by any appropriate form of civil action and may seek enjoinment of
any continued violation thereof and seek to compel obedience thereto by mandatory orders
and writs.” MCO § 244.80. However, a party abandons a claim when it fails to defend
against it in a response to a dispositive motion. See Soucek v. Banham, 503 N.W .2d 153,

32
163 (Minn. App. 1993) (concluding that respondent abandoned a claim not addressed in a
reply motion for summary judgment).
The MPHA claims that Marable has abandoned her claim for the enforcement of
Minneapolis’s housing-maintenance code by failing to defend the claim in Marable’s
response to the MPHA’s motion to dismiss. Count seven of Marable’s complaint seeks the
enforcement of the Minneapolis housing-maintenance code as allowed under section
244.80 “as applied to the current MPHA dwelling” and “all other relief that this Court
deems necessary and appropriate t o ensure [that Marable has] safe, decent and sanitary,
and up to code rental housing in the City of Minneapolis.” Although in the MPHA’s
motion to dismiss for failure to state a claim, the MPHA correctly states that section 244.80
authorizes a party to se ek enforcement of the municipal housing-maintenance code, but
does not provide for monetary damages or attorney fees, the MPHA also acknowled ged
that Marable maintained a viable claim for enforcement under section 244.80.
Accordingly, Marable was not requ ired to defend her claim for enforcement under the
ordinance in her response to the MPHA’s motion to dismiss. Therefore, as a threshold
matter, we conclude that Marable has not abandoned her claim.
Furthermore, Marable’s complaint details numerous instances of Minneapo lis
housing-maintenance code violations at her properties. While it acknowledges that the
MPHA did send individuals to fix some problems, and that the MPHA inspected the
property pursuant to a federally required annual inspection, Marable’s complaint states that
the MPHA inspector failed to identify and enter work orders for several violations. The
complaint alleges that shortly after an inspection, Marable hired a private inspector who

33
found 15 Minneapolis housing-maintenance-code violations—only three of which were
identified by the MPHA inspector.
Accepting the factual allegations within the complaint as true, we conclude that
Marable, as a tenant, has standing to seek enforcement of unidentified and unrectified
Minneapolis housing-maintenance-code violations against the MPHA . Regardless of
whether Marable ultimately succeeds on her claim, her allegations listed in her complaint
are sufficient to state a claim for relief.
VIII. The district court err ed when it determined that Marable’s claims against the
MPHA were barred by official and discretionary immunity.

A. Discretionary Immunity

Marable argues that the district court erred when it determined that three of her
claims were barred by discretionary immunity: (1) that the MPHA entered into an unlawful
agreement with Minneapolis to deny services to MPHA tenants; (2) that the MPHA
impermissibly took the place of Minneapolis in enforcing its housing-maintenance code;
and (3) that the MPHA failed to adhere to Minneapolis’s housing-maintenance code.
Minnesota statutes exempt public authorities from liability for claims based upon
the performance of, or failure to perform, a discretionary function or duty. Minn. Stat.
§ 466.01, subd. 1 (2018) (defining a public authority as one subject to statutory
immunities); Minn. Stat. § 466.03, subd. 6 (2018) (defining discretionary acts for which a
public authority is immune). The application of discretionary immunity is a legal question
reviewed de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

34
When considering which decisions or acts made by a public authority are protected
by discretionary immunity, we must determine whether a decision is operational or
planning in nature. Holmquist v. State , 425 N.W.2d 230, 232 (Minn. 1988). A decision or
act is operational in nature when it includes “professional or scientific” decisions that are
in no way related to the “balancing of policy” considerations. Nusbaum v. County of Blue
Earth, 422 N.W.2d 713, 720 (Minn. 1988). When a public authority makes an operational
decision, such as “actions involving the ordinary, day -to-day operations of the
government,” the public authority receives no immunity. Unzen v. City of Duluth , 683
N.W.2d 875, 882 (Minn. App. 2004), review denied (Minn. Oct. 27, 2004). Conversely, a
decision or act is planning in nature when it “require[s] evaluating such factors as the
financial, political, economic, and social effects of a given plan.” Id. Planning decisions
are protected by immunity. Id.
An alleged agreement between Minneapolis and the MPHA regarding the
coordination or delegation of inspection or enforcement services inherently implicates the
planning of how code enforcement in Minneapolis should occur. This sort of
intergovernmental relationship requires policy decisions that relate to the expenditure of
resources, the relationship between state and federal jurisdictional authorities, and the
political and social needs of the community. Accordingly, the claims that (1) th e MPHA
entered into an unlawful agreement with Minneapolis to deny services to MPHA tenants ,
and (2) the MPHA impermissibly took the place of Minneapolis in enforcing its housing-
maintenance code, are purely matters of departmental planning and policy, and thus are
protected by discretionary immunity.

35
However, unlike the decision to enter into and abide by an enforcement agreement,
the MPHA is statutorily required by state and federal law to adhere to all of Minneapolis’s
housing-maintenance code. See Minn. Stat. § 469.012, subd. 4 (“ All [housing and
redevelopment authority] projects shall be subject to the planning, zoning, sanitary, and
building laws, ordinances, and regulations applicable to the locality in which the project is
situated.”); 24 C.F.R. § 5.703(g) ( providing that local authorities must “comply” and
“adhere” to state and local housing-maintenance codes). Accordingly, as the MPHA has a
nondiscretionary duty to adhere to Minneap olis’s housing-maintenance code, its alleged
failure to do so is not a matter of planning, but instead is a matter of day -to-day
governmental operations and therefore does not receive discretionary immunity.
Thus, even though the district court did not err when it determined that the MPHA
was protected by discretionary immunity as to its alleged participation in an agreement to
take responsibility for the enforcement of Minneapolis ’s housing-maintenance code on
MPHA properties, we conclude that the district court erred when it determined that the
MPHA’s alleged failure to adhere to Minneapolis ’s housing-maintenance code was also
protected by discretionary immunity , as this decision was operational in nature and thus
not protected by discretionary immunity.
B. Official Immunity

Marable argues that the district court erred when it determined that three of her
claims were also barred by official immunity: (1) that the MPHA entered into an unlawful
agreement with Minneapolis to deny services to MPHA tenants; (2) that the MPHA
impermissibly took the place of Minneapolis in enforcing its code; and (3) that the MPHA

36
failed to adhere to Minneapolis ’s housing-maintenance code. As the MPHA’s alleged
decision to enter into an agreement with Minneapolis is protected by d iscretio nary
immunity, we will consider only whether the MPHA’s alleged failure to adhere to
Minneapolis’s housing-maintenance code is protected by official immunity. Therefore, we
must consider whether the actions of defendant Gregory Russ, the executive director of the
MPHA, are protected by official immunity.
Official immunity is designed to protect officials from fear of personal liability that
might deter independent action. Kariniemi v. City of Rockford , 882 N.W.2d 593, 599 -600
(Minn. 2016). “The discretion involved in official immunity is different from the
policymaking type of discretion involved in discretionary function immunity afforded
governmental entities.” Pletan v. Gaines , 494 N.W.2d 38, 40 (Minn. 1992). Instead,
“[o]fficial immunity involves the kind of discretion which is exercised on an operational
rather than a policymaking level,” and therefore protects discretionary decisions made by
an individual, but not “ministerial” duties. Id. A ministerial duty is a duty in which the
individual has no discretion in implementing; instead , “it is absolute, certain, and
imperative, involving merely execution of a specific duty arising from fixed and designated
facts.” Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (quotatio n
omitted). Although official immunity protects the individual making the decision
regarding her or her discretionary duties, vicarious official immunity protects a public
employer from the nature of an employee’s conduct. Id. at 316-17. The decision to grant
official immunity generally “turns on: (1) the conduct at issue; (2) whether the conduct is
discretionary or ministerial and, if ministerial, whether any ministerial duties were violated ;

37
and (3) if discretionary, whether the conduct was willful or malicious.” Vassallo ex rel.
Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014).
In Wiederholt v. City of Minneapolis , the supreme court determined that the
enforcement of a city ordinance by a sidewalk inspector that required the inspector t o
immediately repair broken sidewalk slabs was ministerial in nature and therefore was not
subject to official immunity. 581 N.W.2d at 316. The supreme court reasoned that because
the statute granted the sidewalk inspector no discretion to decide whether to enforce the
provision, discretion was “foreclosed by law.” Id.
Here, the district court determined that Marable’s claims against Russ, including the
claim regarding the MPHA’s failure to adhere to Minneapolis ’s housing-maintenance
code, were barred by official immunity. It stated that the “manner in which MPHA
monitors its properties, coordinates with local officials, and manages its budget are
protected discretionary activities that require it to make judgments about how best to
allocate its resources.” The district court held that because official immunity barred any
action against Russ, the MPHA was also pr otected by official immunity. While it is true
that the decision by Russ, or any one of his predecessors, to enter into an agreement to
become an authorized representative of the department of regulatory services would be
discretionary in nature, and thus protected by official immunity, official immunity does not
protect Russ and the MPHA against their alleged failure to adhere to Minneapo lis’s
housing-maintenance code.
State and fed eral statutes both impose a non discretionary duty on a landlord,
including a public housing authority, to adhere to and comply with municipal codes. See

38
Minn. Stat. § 469.012, subd. 4 (“All [housing and redevelopment authority] projects shall
be subject to the planning, zoning, sanitary, and building laws, ordinances, and regulatio ns
applicable to the locality in which the project is situated.”); 24 C.F.R. § 5.703(g) (provid ing
that local authorities must “com ply” with and “adhere” to state and local housing-
maintenance codes). Like the inspector in Wiederholt, this mandatory duty suggests that
all discretion in adhering to the municipal housing-maintenance code is “foreclosed by
law.” As no discretion is pre sent in this decision, it is a task that is ministerial in nature
and therefore not protected by official immunity. As Russ is not protected by official
immunity for his alleged failure to adhere to the municipal housing-maintenance code, the
MPHA also is not vicariously protected from its alleged failure to adhere.
Therefore, the district court did not err when it determined that Marable’s claims
that (1) the MPHA entered into an unlawful agreement with Minneapolis to deny services
to MPHA tenants, and (2) the MPHA impermissibly took the place of Minneapolis in
enforcing its housing-maintenance code, were barred, as these acts are discretionary in
nature and thus are protected by discretionary and official immunity. However, the district
court erred when it determined that Marable’s claim that the MPHA failed to adhere to
Minneapolis’s housing-maintenance code was also barred by discretionary and official
immunity.
To conclude, th e Minneapolis municipal housing-maintenance code applies to
MPHA properties, and t he City of Minneapolis is the local authority charged with
enforcing this code against MPHA properties. At present, in light of the presumptio ns
granted to the facts alleged in a complaint when assessing it in the context of an appeal

39
from a rule 1 2.02(e) dismissal, we find no cooperative agreement between Minneapo lis
and the MPHA that states otherwise. And therefore, the district court erred in dismissing
the claims as outlined above for failure to state a claim under Minn. R. Civ. P. 12.02(e).
Affirmed in part, reversed in part, and remanded.