This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Mdewakanton Sioux (Dakota) Gaming
Plaintiff (A06-1880), Appellant (A06-1934),
Shakopee Mdewakanton Sioux Community Gaming Commission,
Leonard Prescott, individually, and as current and
former officer and/or director of Little Six, Inc.,
Filed September 25, 2007
Scott County District Court
File No. 70-CV-05-25680
Steven F. Olson, S. “Chloe” Thompson, Olson, Allen &
Mandi L. Hill, Elizabeth Schmiesing, Jerry W. Snider, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)
David G. Keller, Grannis & Hauge, P.A., 1260 Yankee Doodle Road, Suite 200, Eagan, MN 55121 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the denial of a motion to quash subpoenas directed to members of the Shakopee Mdewakanton Sioux Gaming Commission following the docketing of a judgment by the Shakopee Mdewakanton Sioux Community Tribal Court in state district court, the Shakopee Mdewakanton Sioux Gaming Enterprise argues that (1) official immunity precludes the commissioners from testifying, (2) federal law preempts a collateral attack on the commission’s decision, and (3) sovereign immunity precludes the subpoenas and there has been no waiver of that immunity. Because official immunity precludes the commissioners from testifying, we reverse. The motion to strike is granted with the exception of a letter that is part of the district-court record.
Appellant Shakopee Mdewakanton Sioux Community Gaming Commission (Commission) is the regulatory arm of the Shakopee Mdewakanton Sioux Community (Community). The community’s tribal gaming ordinance (Ordinance) requires the commission to perform background checks in determining eligibility for tribal gaming licenses. Respondent Leonard Prescott, individually, and as current and former officer and/or director of Little Six, Inc. (Prescott), applied for a license, which the commission denied.
Prescott appealed to the community tribal court, alleging that the commissioners were biased against him. The tribal court remanded the matter to the commission to develop a record on Prescott’s allegations. On remand, the commission determined that Prescott’s allegations were unsupported. Ultimately, the community’s court of appeals affirmed the commission’s decision.
Little Six Inc., n/k/a plaintiff/appellant Shakopee Mdewakanton Sioux (Dakota) Gaming Enterprise (Enterprise), paid Prescott’s legal fees under an indemnification agreement. The enterprise sought reimbursement from Prescott and a judgment was entered in tribal court. But after failed attempts to collect the judgment from Prescott, the enterprise docketed the judgment in state district court. The district court determined that the judgment should be recognized under Minn. Stat. § 548.35 (2006), Minnesota’s Uniform Foreign Country Money-Judgments Recognition Act (Act), and that Prescott was entitled to prove that a ground for nonrecognition existed.
In preparation of the hearing to show a basis for nonrecognition, Prescott served subpoenas on commissioners. The commission moved to quash the subpoenas. The district court denied the motion, ruling that the commissioners were not entitled to official immunity and that the community, being the real party in interest, waived any claim of privilege and its sovereign-immunity waiver extended to all of its governmental entities. The commission and the enterprise filed separate appeals, which have been consolidated.
D E C I S I O N
commission and the enterprise (appellants) argue that the district court should
have quashed the subpoenas that Prescott served on the commissioners. Whether to quash a subpoena is discretionary
with the district court. Phillippe v. Comm’r of Pub. Safety, 374
N.W.2d 293, 297 (Minn. App. 1985). “On
timely motion, the court . . . shall quash or modify [a] subpoena if it . . . (C)
requires disclosure of privileged or other protected matter and no exception or
waiver applies, or (D) subjects a person to
undue burden.” Minn. R. Civ. P.
court “shall exercise its power with liberality in issuing [an] order which justice
requires for the protection of parties or witnesses from unreasonable
annoyance, expense, embarrassment, or oppression.” Baskerville v.
Appellants argue that the district
court should have quashed the subpoenas because the commissioners possess judicial
or quasi-judicial immunity that precludes their testimony. “The purpose of official immunity is to avoid judicial scrutiny whe[n] public
officials must exercise independent judgment.”
S.L.D. v. Kranz, 498 N.W.2d
47, 51 (
Here, the commission denied Prescott’s gaming-license application. Prescott claims that his application was denied because the commissioners were biased against him and that the judgment should not be recognized because of this bias. The commissioners would testify regarding the reasons for denying Prescott’s application—the type of testimony that is protected by official immunity. Therefore, official immunity precludes the commissioners from testifying, and the district court abused its discretion by not quashing the subpoenas.
Appellants also argue that federal law preempts a collateral attack on the commission’s decision and that without a valid waiver, sovereign immunity provides a basis for quashing the subpoenas. Because we have already determined that the district court abused its discretion by not finding that official immunity required the subpoenas to be quashed, we do not need to address appellants’ other arguments.
Finally, the commission moves this court to strike portions of Prescott’s brief and appendix because they are not part of the record. The commission is correct that portions of Prescott’s brief and appendix are not in the record or supported by facts in the record. The only item that is not stricken is the “Letter to Leonard Prescott, dated December 17, 1999,” found in Prescott’s appendix; this document is in the district-court record.
Reversed, motion granted in part.