State v. Busse

• Decision Date: 16 May 2002
• Docket Number: No. C1-00-481.,C1-00-481.
• Citation: 644 N.W.2d 79
• Parties: STATE of Minnesota, Petitioner, Appellant, v. Myron Joseph BUSSE, Jr., Respondent.
• Court: Minnesota Supreme Court

644 N.W.2d 79

STATE of Minnesota, Petitioner, Appellant, v. Myron Joseph BUSSE, Jr., Respondent.

No. C1-00-481.

Supreme Court of Minnesota.

May 16, 2002.

Mike Hatch, Minnesota Atty. Gen., Robert A. Stanich, Asst. Atty. Gen., Kip O. Fontaine, Clearwater County Atty., Jeanine Renee Brand, Clearwater Asst. County Atty., for appellant.

Kevin Miller, Zenas Baer, Hawley, for respondent.

Shirley Cain, Tribal Atty., for amicus curiae, White Earth Band of Ojibwe.

Joseph Plumer, Tribal Atty., Michael Garbow, Associate Tribal Atty., for amicus curiae, Leech Lake Band of Ojibwe.

Dennis J. Peterson, Tribal Atty., for amicus curiae, Fond du Lac Band of Ojibwe.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, Paul H., Justice.

On December 15, 1999, Myron Joseph Busse, Jr. was charged with a gross misdemeanor for driving on a Clearwater County road after cancellation of his Minnesota driver's license as inimical to public safety under Minn.Stat. § 171.24, subd. 5 (1998).¹ Busse's driver's license had been canceled on January 1, 1998. His driving record reflects that the cancellation resulted from four separate driving under the influence convictions. See Minn.Stat. § 171.04, subd. 1(9) (1998).² The first incident occurred in April 1990, the second in October 1993, and the last two in January and October of 1997. Busse stipulated to the fact that his license had been canceled as inimical to public safety and that he had been driving a car on a public road. Busse asserted that the charged offense is civil/regulatory, not criminal/prohibitory, and moved to dismiss the charge on the grounds that the state did not have subject matter jurisdiction. Busse's basis for his motion was that he is an enrolled member of the White Earth Band of Chippewa Indians and that he was driving on the White Earth Reservation at the time of the violation.

The district court denied Busse's motion, concluding that the charge was "enforceable" because the state had jurisdiction. Busse pleaded guilty and was sentenced, but his sentence was deferred pending an appeal to the Minnesota Court of Appeals. The court of appeals reversed the district court and dismissed the charge, concluding that the state did not have jurisdiction to enforce the charge against Busse because he is an Indian, the offense was civil/regulatory, and the offense occurred on the reservation. We reverse.

On the morning of December 14, 1999, a Clearwater County Sheriff's Deputy observed respondent Myron Joseph Busse, Jr. driving a car on Clearwater County Road Number 7—a road maintained by the county and open to the general public, but within the boundaries of the White Earth Indian Reservation. The deputy believed that Busse's driving privileges had been canceled as inimical to public safety, so he called the dispatcher to verify this belief. The dispatcher confirmed that Busse's driver's license and privileges had been canceled as inimical to public safety. The state asserts that because the deputy was involved in other official business, he did not stop Busse at that time.

Later that same day, the deputy observed Busse traveling as a passenger in a car on another county road. The deputy stopped the car and asked Busse why he had been driving a car that morning. Busse responded, "I was just driving my buddies around." Busse was then charged with a gross misdemeanor for driving after cancellation as inimical to public safety in violation of Minn.Stat. § 171.24, subd. 5.

Busse's driving record reflects that before this arrest he had numerous driving under the influence violations. On April 3, 1990, Busse was stopped by the police and consented to an alcohol test. His license was then revoked when the test revealed that his blood alcohol level was above the legal limit. On October 1, 1993 and again on January 29, 1997, Busse was stopped by the police. On both of these occasions, he refused an alcohol test, his license was revoked, and he eventually pleaded guilty to driving under the influence. On October 25, 1997, Busse was stopped for a fourth time, but on this occasion he consented to an alcohol test. He then pleaded guilty to driving under the influence. On January 1, 1998, Busse's license was canceled as inimical to public safety under Minn.Stat. § 171.04, subd. 1(9), because of his four driving under the influence convictions. Busse's driving record also reflects that before his arrest in this case, he had been stopped twice for driving after his license was canceled as inimical to public safety, although no disposition was given for these stops.

In the present case, the parties first stipulated to the facts and then Busse moved to dismiss the gross misdemeanor charge against him. Busse argued that the state did not have subject matter jurisdiction to enforce driving after cancellation because he was an enrolled tribal member, the offense was civil/regulatory, and he had been driving on his reservation at the time of the offense. The state asserted that it had jurisdiction to enforce driving after cancellation as inimical to public safety. The state argued that Busse's charge was different from the driving after revocation charge at issue in State v. Johnson which we held to be civil/regulatory and thus not enforceable on the Indian reservation. 598 N.W.2d 680 (Minn.1999). The district court denied Busse's motion, concluding that the state did have jurisdiction to enforce driving after cancellation as inimical to public safety, based on the court of appeals' decision in State v. Zornes, 584 N.W.2d 7 (Minn.App.1998). In Zornes, the court of appeals held that driving after cancellation as inimical to public safety was a criminal/prohibitory offense which, under our court's precedent, allowed the state to enforce it on an Indian reservation. Id. at 11. Following this ruling, Busse pleaded guilty, but preserved his right to appeal the jurisdictional issue.³ The court convicted Busse of the offense and sentenced him to 1 year in jail, with all but 10 days stayed, and a $3,000 fine, with all but $750 stayed, and 2 years unsupervised probation on the condition that Busse not drive without a valid license and insurance. The court then postponed the execution of the sentence pending Busse's jurisdictional appeal.

On appeal, the court of appeals concluded that Zornes was overruled by our opinion in Johnson, 598 N.W.2d 680. State v. Busse, 616 N.W.2d 760, 763-64 (Minn.App. 2000). The court of appeals read Johnson to suggest that consideration of the offense that triggered the cancellation was inappropriate, and therefore driving after cancellation as inimical to public safety was no different than driving after revocation based on failure to show proof of insurance in Johnson. Busse, 616 N.W.2d at 763-64. The court of appeals then reversed the district court because it concluded the cancellation to be civil/regulatory and directed that the charge against Busse be dismissed. Id. at 763-64. The state appeals, arguing that driving after cancellation as inimical to public safety is criminal/prohibitory. It asserts that the offense here is different from the revocation charge at issue in Johnson because driving after cancellation as inimical to public safety is one of the state's mechanisms to enforce driving under the influence violations and therefore raises heightened public policy concerns.

I.

Whether the state has jurisdiction to enforce its laws with respect to an Indian charged with an offense committed on his reservation is an issue that we review de novo without considering the decisions of the lower courts. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000). We explained the history and process for determining whether the state has jurisdiction in R.M.H., beginning with the premise that the state's authority to exercise subject matter jurisdiction over Indians is governed by federal law. Id.

[S]tate law does not generally apply to tribal Indians on their reservations absent express consent from Congress. However, even absent such express consent, a state may exercise its authority if the operation of federal law does not preempt it from doing so. * * * [T]he same analytical framework that we applied in Stone is appropriate here. * * * In order to determine whether Congress had expressly consented to state jurisdiction, we first examined Pub.L. 280, which expressly grants Minnesota broad criminal and limited civil jurisdiction over specified areas of Indian country. * * * This grant of jurisdiction was intended to combat the problem of lawlessness on reservations and a lack of tribal law enforcement. * * * Pub.L. 280 grants states broad criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State. * * * [A] state statute is "criminal/prohibitory," and therefore within Pub.L. 280's grant of jurisdiction, if the statute is generally intended to prohibit certain conduct. * * * [A] statute does not fall within Pub.L. 280's grant of jurisdiction if it generally permits the conduct at issue, subject to regulation. In the latter case, the statute is properly classified as "civil/regulatory" and Pub.L. 280 does not expressly grant the state jurisdiction to enforce the statute on an Indian reservation.

Id., at 58-59 (referring to State v. Stone, 572 N.W.2d 725 (Minn.1997)) (internal quotations and citations removed). Here, we must look to whether the law at issue is civil/regulatory or criminal/prohibitory to determine whether Congress expressly consented to Minnesota's jurisdiction over Busse. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987); R.M.H., 617 N.W.2d at 58-59.

In Stone, we adopted a two-step analysis to determine whether a law was civil/regulatory or criminal/prohibitory under Cabazon. Stone, 572 N.W.2d at 730 (analyzing Cabazon, 480 U.S. at 210-11, 107 S.Ct. 1083). The first step is to determine whether to analyze the broad conduct—...