This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Columbus Concerned Citizens, Inc.,





Minnesota Racing Commission, et al.,





North Metro Harness Initiative, LLC,




Filed June 6, 2006

Klaphake, Judge


Ramsey County District Court

File No. C3-04-12118


Byron E. Starns, Timothy J. Keane, James A. Stein, Jeffrey Harrington, Leonard, Street and Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN  55402 (for appellant)


Mike Hatch, Attorney General, Kenneth E. Raschke, Jr., Darren Dejohn, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondents Minnesota Racing Commission, et al.)


John E. Drawz, Jay M. Quam, Mollie M. Smith, Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN  55402 (for respondent North Metro Harness Initiative)



            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Columbus Concerned Citizens, Inc. challenges the district court’s grant of summary judgment to respondents Minnesota Racing Commission and its eight individual commissioners, and North Metro Harness Initiative, LLC, intervenor, dismissing appellant’s complaint for violation of the Minnesota Open Meeting Law, Minn. Stat. §§ 13D.01 - .07 (2004).  Appellant alleged that the commissioners violated the open meeting law by engaging in ex parte communications with each other and with representatives of North Metro regarding the commission’s sua sponte decision to reconsider its denial of North Metro’s application for a Class A racetrack license.  Appellant’s certiorari challenge to the commission’s ultimate decision to grant the license was recently rejected by this court, which concluded that the commission has inherent authority to reconsider its decision, appellant’s due process rights were not violated, and substantial evidence in the record supported approval of the license.  In re Application of N. Metro Harness, Inc., 711 N.W.2d 129, 131 (Minn. App. 2006).

            In this appeal, appellant argues that (1) its discovery was impermissibly restricted and prematurely terminated; (2) it need not establish evidence of a private meeting of a quorum of members to show a violation of the open meeting law; and (3) violations of the open meeting law can form the basis to invalidate actions of an administrative agency.  Because the district court did not abuse its discretion by restricting the scope of appellant’s discovery or by denying appellant’s request for a continuance, and did not err by granting summary judgment because appellant was not entitled to the relief it requested, we affirm.


            On review of a grant of summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  WDSI, Inc. v. County of Steele, 672 N.W.2d 617, 620 (Minn. App. 2003).  Genuine issues of material fact do not exist “when the nonmoving party presents evidence . . . which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).


            Appellant complains that the district court improperly restricted its discovery by prohibiting it from taking oral depositions of the individual commissioners, by impermissibly restricting its discovery to the time period between October 21, 2004, to November 17, 2004, and by prematurely terminating its discovery when it denied appellant a continuance.

            A district court has broad discretion in shaping the type and scope of discovery.  Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987) (stating that district court “has considerable discretion in granting or denying discovery requests”); WDSI, 672 N.W.2d at 622 (stating that rules of civil procedure “give the district court broad discretion when granting protective orders”).  While discovery is to be liberally granted, a district court may deny or limit discovery to protect a party from unnecessary annoyance, embarrassment, undue burden, or expense.  See Minn. R. Civ. P. 26.03; Erickson, 414 N.W.2d at 407; WDSI, 672 N.W.2d at 622.

            Protective orders are appropriate when the proposed discovery involves matters outside the scope of a legitimate cause of action or attempts to delve into the mental processes of administrative officials.  See, e.g., In re Application of Lecy, 304 N.W.2d 894, 900 (Minn. 1981); Mampel v. Eastern Heights State Bank of St. Paul, 254 N.W.2d 375, 378 (Minn. 1977).  This court has concluded that “Mampel and subsequent cases demonstrate an exception to the general principle of wide-ranging discovery [and that] [i]nquiry of administrative executives is limited to written query.”  Ellingson & Assocs., Inc. v. Keefe, 396 N.W.2d 694, 696 (Minn. App. 1986), review denied (Minn. Jan. 21, 1987).  Such reasonable limits are necessary to conserve the time and energy of public officials, who are often parties to a substantial volume of litigation.  See id. at 696-97.

            The district court limited appellant’s discovery of the individual commissioners to written interrogatories and restricted the time period to that framed by the complaint.  The court recognized that appellant’s attacks on the validity of the commission’s actions that were based on alleged procedural irregularities or off-the-record discussions were issues addressed in appellant’s certiorari appeal and were not properly before the court in this case involving violation of the open meeting law.  The district court also limited appellant’s discovery to the allegations framed by the complaint, which involved whether any of the commissioners had violated the open meeting law between October 21 and November 17, 2004.  Because the district court’s protective order was designed to limit discovery to the content of conversations between commissioners during the relevant time period, we conclude that the district court did not abuse its discretion.

            Appellant further complains that the district court abused its discretion by denying its request for a continuance.  While we are somewhat troubled by the district court’s denial of a continuance when the time for discovery had not yet expired, the district court acted reasonably based on the record before it.  After considering appellant’s offer of proof, the district court determined that based on the extensive discovery that appellant had already conducted, any further discovery was unlikely to produce additional evidence that would affect the outcome.  The district court did not abuse its discretion in ruling that appellant had a “fair and adequate opportunity” to conduct discovery and in denying any further continuances at that point.


            The district court determined that because the only meetings that are subject to the open meeting law are gatherings of a quorum or more of members of the governing body, appellant failed to establish any violation.  By its terms, the open meeting law applies to “gatherings of a quorum or more members of the governing body,  . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.”  Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983).  This court has recognized that this “quorum requirement in Moberg reflects the supreme court’s unwillingness to subject gatherings of public officials to the open meeting law where the group lacks the power to actually transact business.”  Sovereign v. Dunn, 498 N.W.2d 62, 66 (Minn. App. 1993), review denied (Minn. May 28, 1993) (quotation omitted).  In addition, a meeting between a member of a governing body and a non-member generally is not subject to the open meeting law.  Minn. Educ. Ass’n v. Bennett, 321 N.W.2d 395, 398 (Minn. 1982) (holding that telephone conversation between school superintendent and board member did not violate open meeting law because superintendent was not entitled to vote and was not member of governing body).

            Thus, any ex parte contacts between individual commissioners and representatives of North Metro or other third parties are not subject to the open meeting law.  In addition, any conversations between the commissioners that constitute less than a quorum of the commission do not violate the open meeting law.  Here, no evidence was presented to show that a quorum of the commissioners engaged in conversations regarding the commission’s decision to reconsider its denial of North Metro’s license application; at most, three commissioners may have had some contact with each other between October 21 and November 17, 2005, regarding this issue.

            Appellant insists that meetings of less than a quorum of the commissioners can constitute a violation of the open meeting law.  Moberg recognizes that “serial meetings in groups of less than a quorum for the purposes of avoiding public hearings or fashioning agreement on an issue [before it is raised at a public hearing] may also be found to be a violation of [the open meeting law] depending upon the facts of the individual case.”  Id. at 518.  Moberg further recognizes that “[i]ntra-agency persuasion and discussion become improper when designed to avoid public discussion altogether, to forge a majority in advance of public hearings on an issue, or to hide improper influences such as the personal or pecuniary interest of a public official.”  Id. at 336 N.W.2d at 517-18.

            Here, while several commissioners discussed the commission’s denial of North Metro’s application and possibly discussed how they might go about persuading their fellow commissioners to reconsider that denial, there is no evidence to suggest that these commissioners were able to “forge a majority in advance of the public hearing” on the issue or that they engaged in these off-the-record discussions to avoid public discussion of the issue altogether.  To the contrary, the commission held several public hearings on the issue of reconsideration, reopened the record, and allowed consideration of additional evidence prior to voting.  And this court has already determined that the commission had the inherent authority to reconsider its decision and that due process was not violated by the process followed by the commission.  See N. Metro Harness, 711 N.W.2d at 134-39.  We therefore conclude that the district court did not err in determining that appellant failed to establish that a gathering of a quorum or more of the commissioners had occurred in violation of the open meeting law.


            Minnesota courts have specifically held that a violation of the open meeting law does not justify invalidation of actions of a government body.  See, e.g., Sullivan v. Credit River Twp., 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974); In re Petitions of D & A Truck Line, Inc., 524 N.W.2d 1, 6 (Minn. App. 1994).  The law does not provide a separate remedy against the commission, nor does it provide for any declaratory relief.  See Rupp v. Mayasich, 561 N.W.2d 555, 558 (Minn. App. 1997) (upholding district court’s dismissal of declaratory judgment action as nonjusticiable when appellants failed to seek injunctive relief or civil damages under the open meeting law).  The sole remedy available to appellant in this case is a civil penalty of up to $300 against any individual commissioners shown to have intentionally violated the open meeting law,[1] and the possible award of attorney fees.  Minn. Stat. § 13D.06 (2004).  We therefore conclude that the district court did not err in determining that even if appellant established a violation of the open meeting law, that violation would not permit a declaration of invalidity of the commission’s decision to grant the license application, which is the ultimate relief sought by appellant here.

            The district court did not err in granting summary judgment to respondents and in dismissing appellant’s complaint.


[1]  Given our determination that appellant has failed to show that a meeting or gathering of a quorum of commissioners occurred, the issue of intent becomes irrelevant.