This opinion will be unpublished and
May not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-430

Jill Gavle,
Respondent,

vs.

Little Six, Inc.,
d/b/a Mystic Lake Casino, et al.,
Defendants,

Allene Ross,
Appellant.

Filed January 11, 2000
Affirmed
Anderson, Judge

Scott County District Court
File No. 9412423

Steven F. Olson, BlueDog, Olson & Small, PLLP, 500 Southgate Plaza, 5001 W. 80th Street, Minneapolis, MN 55437 (for appellant)

Ronald H. Usem, Craig D. Greenberg, Huffman, Usem, Saboe, Crawford & Greenberg, P.A., 1000 Water Park Place, 5101 Olson Memorial Highway, Minneapolis, MN 55422; and

Ronald I. Meshbesher, Daniel J. Boivin, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Appellant Allene Ross challenges the district court's denial of a summary judgment motion. Ross argues that the district court erred in not granting summary judgment because (1) the court lacked subject matter jurisdiction, (2) she is protected by sovereign and qualified immunity and (3) Little Six Inc. (LSI) is an indispensable party to the suit and cannot be joined in this action. The only issue properly before this court is the issue of qualified immunity. Because Minnesota laws do not protect appellant's actions and because appellant failed to show that tribal community laws protect her actions, we affirm.

FACTS

Respondent Jill Gavle began working as a security guard at Mystic Lake Casino in March 1992. In June 1992, Gavle began having an intimate relationship with the Chairman and Chief Executive Officer of the casino, Leonard Prescott; the relationship resulted in an unplanned pregnancy. Gavle claims that certain tribal officials were unhappy about her relationship with Prescott and purposely created a hostile working environment.

In 1994, Gavle filed suit against LSI, Leonard Prescott, William Johnson (President and Chief Operating Officer of LSI), and Allene Ross (Vice-Chairperson of the LSI's Board of Directors).[1] Gavle asserted claims for sexual harassment, pregnancy and race discrimination, civil rights violations, and various other claims. LSI and Ross moved to dismiss Gavle's suit, claiming lack of personal and subject matter jurisdiction and sovereign immunity protection. On December 16, 1994, the district court granted LSI's motion to dismiss, holding that LSI was immune from suit. The district court denied Ross' motion. The district court's ruling was affirmed in Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996) (Gavle I).

After Gavle I, Gavle continued with her suit against Johnson, Prescott and Ross. In 1998, all three defendants moved for summary judgment. Ross asserted that Gavle failed to establish the essential elements of her claims, that the court lacked subject matter jurisdiction and that she was protected by sovereign and qualified immunity. On February 4, 1999, the district court granted Johnson's motion for summary judgment and dismissed all claims against him. In addition, the court granted partial summary judgment for Prescott and Ross. The court dismissed all claims against Ross except for the claims of assault, battery, and intentional infliction of emotional distress.

Ross now appeals the district court's denial of summary judgment on these remaining tort actions. Ross claims that the district court erred in not granting summary judgment because: (1) the court lacks subject matter jurisdiction; (2) she is protected from suit under the doctrines of sovereign and qualified immunity; and (3) LSI is an indispensable party that cannot be joined in the action. In response, Gavle requests that this court dismiss Ross' appeal arguing: (1) that the issues of jurisdiction and sovereign immunity were decided in the December 16, 1994 order, which appellant did not appeal; (2) that the sovereign immunity and qualified immunity issues assume factual and legal determinations not made below; and (3) that the part of the February 4, 1999 order denying summary judgment for failure to join an indispensable party is not appealable.

D E C I S I O N

On appeal from summary judgment, this court must determine if there are any genuine issues of material fact and whether the district court erred in its application of the law. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn. 1999), cert. denied 120 S. Ct. 417 (1999); Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

Generally, an order denying a motion for summary judgment is not appealable unless the district court certifies the issue presented as important and doubtful. Minn. R. Civ. App. P. 103.03.

This court will review uncertified cases if the summary judgment motion was based on lack of subject matter jurisdiction or governmental immunity from suit. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 218 (Minn. 1998); McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 832-33 (Minn. 1995). Issues of immunity and subject matter jurisdiction are considered

too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

McGowan, 527 N.W.2d at 833 (quotation omitted). Subject matter jurisdiction and the applicability of immunity are questions of law, which this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996); MacCharles v. State Dept. of Revenue, 584 N.W.2d 795, 797 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).

Jurisdiction

As a preliminary matter, Ross asserts that federal law precludes Minnesota courts from exercising jurisdiction over her because her tribe and employer, the Shakopee Mdewakanton Sioux Community, is a domestic dependent nation and immune from suit. The ability of a state to exercise its jurisdiction over Indian matters is governed by federal statute or case law. State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997). Absent a federal mandate, a state may not assert jurisdiction over Indian tribes. Bryan v. Itasca County, Minnesota, 426 U.S. 373, 392, 96 S. Ct. 2102, 2113 (1976). In Pub. L. 280, Congress granted Minnesota broad criminal jurisdiction, and limited civil jurisdiction over Indian reservations within the state of Minnesota. 18 U.S.C.  1162 (1992); 28 U.S.C.  1360 (1992).[2] Because Pub. L. 280 does not extend to tribes or tribal entities, federal case law governs jurisdiction over tribes and tribal entities. Bryan, 426 U.S. at 388-89, 96 S. Ct. at 2111; Gavle I, 555 N.W.2d at 289.

In 1994, Ross made a motion to dismiss Gavle's claim for lack of jurisdiction under Minn. R. Civ. P. 12.01 (a), (b). The district court ruled that Minnesota state courts have jurisdiction over Gavle's claims under 28 U.S.C. 1360 (a). In that same decision, the district court also ruled that LSI was entitled to immunity. Gavle, not Ross, appealed the district court's ruling, which was then affirmed by this court and the Minnesota Supreme Court. Gavle I, 555 N.W.2d at 280, aff'g, 534 N.W.2d 280 (Minn. App. 1995), cert. denied, 118 S. Ct. 2075 (1998). In its decision, the supreme court held explicitly that "state courts have jurisdiction of Gavle's claims, including those arising within Indian country." Id. at 290-91.

After Gavle I, respondent pursued her claims against Prescott, Johnson, and Ross. In 1998, Ross moved for summary judgment seeking to dismiss Gavle's claims based on lack of subject matter jurisdiction. The district court ruled, for a second time, that Minnesota courts have jurisdiction over Gavle's claims under 28 U.S.C.  1360 (a). Ross now challenges this decision, arguing for the third time that federal law precludes a Minnesota court from exercising jurisdiction over her actions as a tribal official.

Once the right to appeal from an unvacated appealable order has expired, the right of appeal is not revived by a negative order on a second motion for the same relief. Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983). A party can appeal from an order denying a second motion only if there are grounds not included in the first one and if satisfactory reasons appear for that omission. Id. The question of whether Minnesota courts have jurisdiction over Gavle's claims against Ross was decided in 1994 and was immediately appealable. The 1994 decision and the Gavle I decision clearly stated that Minnesota courts have jurisdiction to hear all of Gavle's claims. The law underlying those decisions has not changed. Because Ross failed to appeal the 1994 decision, she is bound by Gavle I and her right to appeal was not revived by the 1999 ruling on the same issue.[3]

Sovereign Immunity

In addition to lack of subject matter jurisdiction, Ross also claims her actions as a tribal official are protected by tribal sovereign immunity. Indian tribes have immunity from suit and may not be sued absent an express waiver of immunity by the tribe or Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S. Ct. 1670, 1677 (1978). Tribal sovereign immunity extends to tribal officials acting in their official capacity and within their scope of authority. Hegner v. Dietze, 524 N.W.2d 731, 735 (Minn. App. 1994). Ross asserts her actions are protected under the doctrine of sovereign immunity so long as her actions do not conflict with her valid tribal authority.

Again, this is not the first time that Ross has asserted sovereign immunity as a defense to Gavle's claims. In 1994, Ross moved for summary judgment based on the defense of sovereign immunity. The district court ruled that LSI's tribal immunity extends to tribal officials acting within the scope of their authority and in a representative capacity, but concluded that whether Ross is immune from suit depends on the resolution of a fact question. Thus, left for trial was the question of whether Ross was acting in a representative capacity when she engaged in the activities challenged by Gavle and whether she was acting within the scope of her authority.

In 1999, Ross moved for summary judgment, asserting for the second time that she was immune from suit based on the doctrine of sovereign immunity. In the 1999 order, the district court cited new authority on tribal sovereign immunity, but also ruled, as the district court did in 1994, that the tribal sovereign immunity extends to tribal officials acting within the scope of their authority. See Otterson v. House, 544 N.W.2d 64, 66 (Minn. App. 1996), review denied (Minn. Apr. 26, 1996). The district court again ruled that there remains a question of fact as to whether Ross was clearly acting within the scope of the authority delegated to her by the tribe when she engaged in the conduct challenged by Gavle.

Ross now seeks to reverse the district court decision, asserting for the third time that she is protected from suit by sovereign immunity. Ross claims (1) that there is no issue of material fact as to whether she was acting within the scope of her authority, and (2) that even if there is an issue of fact involved, the question of whether she is entitled to sovereign immunity must be determined before the case can proceed on its merits.

The issue of sovereign immunity was presented to and decided by the district court in 1994. It is clear that at the time of the 1994 ruling, an appeal could be taken from an adverse ruling on immunity. See Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986) (declaring that although no Minnesota rule or statute explicitly conferred a right to pretrial appellate review of an immunity ruling, Minnesota courts would follow federal law reasoning on this point).[4]

The district court's 1999 denial of summary judgment was based on the same question of fact about the scope of authority that was identified in the 1994 ruling. Because Ross had a right to appeal that ruling and did not do so, she is bound by that determination and her right to appeal was not revived by the 1999 ruling on the same issue.

Qualified Immunity

Ross also argues that her actions are protected by qualified immunity. Qualified immunity protects government officials performing discretionary functions from civil liability so long as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted). The burden of proving qualified immunity is on the official seeking protection from suit. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Specifically, Ross argues that she is protected by official immunity.[5] Official immunity protects government officials who must exercise discretion on an operational level. Bauer v. State, 511 N.W.2d 447, 449 (Minn. 1994). "Official immunity protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997) (citation omitted). Generally, official immunity is reserved for those who must perform important government functions that result in a certain level of necessary public danger. See Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992) (holding that police officers who engaged in a high-speed car chase of a fleeing suspect were protected by official immunity).

In order to determine if immunity is appropriate it is necessary to determine "the precise governmental conduct at issue." Hansen ex rel Watson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 415 (Minn. 1996) (citation omitted). Ross asserts that her discretionary function, as a casino official is "to protect the integrity and security of casino administration, operations, and facilities." Ross claims that because the casino industry is susceptible to "inherent evils" that her position as a casino administrator is not a "common occupation" and should therefore be granted qualified immunity.

Although casino gaming is highly regulated, casino management activities do not fall within the limited category of necessary government functions that are protected by official immunity. Her position as casino administrator, and specifically her interactions with Gavle, do not require the same type of quick decision-making that is involved in a police officer deciding whether to engage in a high-speed chase or whether to stop a suspicious vehicle. See, e.g., State ex rel Beaulieu v. City of Mounds View, 518 N.W.2d 567 (Minn. 1994); Elwood v. County of Rice, 423 N.W.2d 671 (Minn. 1988).

In addition, even if Ross were performing a protected discretionary function, official immunity does not protect officials who willfully violate a known right. Gleason, 582 N.W.2d at 220. Qualified immunity does not protect officials whose conduct is beyond the scope of their discretionary authority. Rehn, 557 N.W.2d at 333. In determining whether Ross committed a malicious wrong, subject to exception from the doctrine of official immunity, this court need only find that Ross intentionally committed an act and that she had reason to believe her actions were prohibited by statute or Constitution. Kalia v. St. Cloud State University, 539 N.W.2d 828, 832 (Minn. App. 1995). Gavle alleges that Ross committed assault, battery, and intentional infliction of emotional distress; by their very nature these actions are intentional and violate Minnesota tort laws. The supreme court has held that the intentional infliction of emotional distress, and harassing and belittling comments are not discretionary acts protected by official immunity. Gleason, 582 N.W.2d at 221.

Although Ross asserts that her actions should be judged by tribal community standards, she does not offer any tribal authority in support of her argument that her position as a casino administrator is a protected government function. Her actions as a casino administrator are not a discretionary function protected by qualified immunity, therefore the district court did not err in denying summary judgment on the issue of qualified immunity.

Joinder

Ross also argues that the district court erred in denying summary judgment because (1) LSI is an indispensable party to the action, (2) that complete relief cannot be granted without LSI, and (3) that the case cannot proceed in LSI's absence. We refuse to adopt Ross' circular reasoning on the issue of joinder. Ross seeks to frame this issue in terms of sovereign immunity, arguing that she, as a tribal official, cannot be joined merely because LSI cannot be joined. The district court has yet to determine if Ross is protected by sovereign immunity and this court will not decide the issue of immunity for the purpose of deciding this joinder issue. Further, it should be noted that the absence of LSI from this case is not a result of the failure of Gavle to name them as a party; rather, LSI sought and was awarded summary judgment dismissing LSI from these proceedings. Ultimately, the issue here is neither jurisdictional nor related to the immunity ruling and is therefore not immediately appealable. See Doerr v. Warner, 247 Minn. 98, 103, 76 N.W.2d 505, 511 (1956).

Ross urges this court to extend review to the joinder ruling, even if not appealable as a matter of right. Although this court does not review nonappealable orders, it may do so when the order raises issues that are inextricably interwoven with the issues presented in the appeal as of right. See Swint v. Chambers County Comm'n, 514 U.S. 35, 150-51, 115 S. Ct. 1203, 1212 (1995) (indicating that a ruling which is not independently appealable might be renewable if inextricably intertwined with an immediately appealable ruling). In this case, Ross has not shown that the absence of LSI from this litigation is inextricably linked to the ultimate determination of qualified immunity, the only issue properly before this court, and thus we decline to review the issue of joinder.

Affirmed

 

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

[1] LSI is the corporation formed by the Shakopee Mdewakanton Sioux Community to operate the Mystic Lake Casino.

[2] Pub. L. 280 only applies in six states: Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. 18 U.S.C.  1161(a). Red Lake Reservation is specifically excluded from Pub. L. 280.

[3] Respondent also argues that the doctrines of infringement and preemption bar Minnesota courts from asserting jurisdiction over Gavle's claims. Having decided that the 1994 decision and Gavle I are dispositive on the issue of jurisdiction, we decline to revisit the issues of infringement or preemption here.

[4] In 1995, the right to pretrial appellate review of immunity issues began to narrow. In Johnson v. Jones, 515 U.S. 304, 307-08, 115 S. Ct. 2151, 2158 (1995), the Court held that an immunity ruling is not immediately appealable if based on the existence of a factual dispute over the involvement of a particular defendant. In Carter v. Cole, 539 N.W.2d 241, 241 (Minn. 1995), the supreme court cited Johnson and agreed that there is no right to an immediate appeal if an immunity ruling is based on a factual dispute relating to the merits of the claims, but left open the possibility that if there is a factual dispute related to the issue of immunity than such an order might be appealable. The factual dispute identified by the district court in 1994 related to the existence of immunity not to the merits of the case. Ross' right to immediate appeal was not limited by the supreme court under Cole; therefore Ross should have appropriately appealed from the 1994 judgment. The 1994 ruling on sovereign immunity was final and appealable.

[5] Official immunity is one type of qualified immunity and should be contrasted with statutory discretionary function immunity which applies to government officials at the policymaking level of government. Bauer v. State, 511 N.W.2d 447, 449 (Minn. 1994).