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Federal judge denies Shakopee, Grand
Portage motion for summary judgment in
casino audit lawsuit
State joins Press/ON in appealing
state district
court ruling on casino audits
by Clara NiiSka and Bill Lawrence
U.S. Federal District Court Judge Ann D. Montgomery denied
tribal arguments and granted the state’s motion for summary judgment in
the
case Shakopee and Grand Portage v. Mike Hatch, David F.
Fisher, and
Charles R. Weaver, Jr. on June 20th.
The law firm BlueDog, Olson & Small filed the federal
lawsuit on behalf of their clients, the Shakopee Indian community and
the Grand
Portage Band, after the Minnesota Attorney General’s Office issued an
opinion
that casino audits filed with the Minnesota Department of Public Safety
pursuant to the Tribal-State Gaming Compacts were public records.
Press/ON publisher Bill Lawrence had requested
the
audits pursuant to the Minnesota Government Data Practices Act. The audits were subsequently also requested
by the Minneapolis Star Tribune and two state legislators. After six months of legal wrangling between
state agencies, on September 14, 2001 the Attorney General’s office
opined that
the audits are public records which the Data Practices Act, Minnesota
Statutes
§ 13, requires the state to release to the public upon request. Prairie Island and Mille Lacs filed suit in
state court to bar release of the audits, and Shakopee and Grand
Portage filed
in federal court.
In her June 20th judgment, Judge Montgomery
ruled
on cross-motions for summary judgment filed by the plaintiffs, Shakopee
and
Grand Portage, and by the Minnesota government defendants.
She rejected all of the motions filed by the
tribal attorneys, and granted the State’s motion for summary judgment. Judge Montgomery also denied Shakopee and
Grand Portage’s appeal of Federal Magistrate Judge Arthur J. Boylan’s
Order of
February 21, 2002, requesting that independent legal counsel be
appointed for
State Department of Public Safety Commissioner Charles Weaver, ruling
that the
Attorney General’s office was properly representing the State and state
officials.
The Data Practices
Act
The attorneys for Shakopee and Grand Portage argued that the
Tribal-State Compacts prohibit the State from applying the Data
Practices Act
to the casino audits, claiming “breach of contract.”
The Data Practices Act “is to balance the
rights of individuals
to protect personal information from indiscriminate disclosure with the
right
of the public to know what the government is doing,” wrote Judge
Montgomery. The Act “establishes a
presumption
that all government data are public and accessible to the public,
unless
otherwise classified by statute, by temporary classification under the
MGDPA,
or by federal law,” she explains.
“Two appellate courts have held that application of a state’s
public record law to information obtained from a tribe pursuant to a
tribal-state gaming compact does not violate the compact where the
compact
either permits such application or is silent on the issue,” ruled Judge
Montgomery, the “breach of contract claim fails as a matter of law.”
Due Process
The tribal attorneys also argued that Minnesota Statute §
13.06 “violates procedural due process.” Judge
Montgomery rejected that argument,
noting that the Data Practices
Act “affords the Tribes a sufficient opportunity to be heard in state
court. No due process violation has
occurred.”
Preemption by IGRA
Attorneys Steven Olson and Greg Paulson also argued on
behalf of Shakopee and Grand Portage that the presumption that
governmental
data is public information in the Data Practices Act is outweighed –
preempted
– by the Indian Gaming Regulatory Act (IGRA), which treats tribal
gaming audits
as nonpublic for the purposes of the Freedom of Information Act (FOIA).
“The FOIA applies only to records held by a federal
government agency,” wrote Judge Montgomery, and “indeed, ‘the plain
language of
the FOIA precludes its application to state or local agencies’.” In rejecting the ‘preemption’ argument,
Judge Montgomery noted that federal law does not preempt state public
records
statutes, and quoted from Confederated Tribes of Siletz Indians v.
Oregon
(143 f.3d 481, 1998), “if the Report contained damaging information on
the
operation [of the casino] and the release of that Report [could] cause
a
decline in business, [such a possibility] is fully consistent with
IGRA’s goal
of fair and honest gaming.”
“Federal law does not preempt application” of the Data
Practices Act, ruled Judge Montgomery.
Estoppel
“The public interest in the rule of law is undermined when
government is unable to enforce the law because of the conduct of its
agents,”
explained Judge Montgomery, those “who deal with the Government are
expected to
know the law and may not rely on the conduct of Government agents
contrary to
law.” Therefore, “in seeking to estop
the State, the Tribes must establish … that the government conduct in
question
amounts to ‘affirmative misconduct’.”
Since the “Tribes have presented no evidence of affirmative
misconduct by the State,” ruled Judge Montgomery, “the Tribes’ estoppel
claim
fails.”
Trade Secrets
The tribal attorneys for Shakopee and Grand Portage argued
in federal court that the casino audits are “trade secrets,” as the
attorneys
for Mille Lacs and Prairie Island have argued in state court. “The Eleventh Amendment’s guarantee of
sovereign immunity to the states bars federal court adjudication of
pendant
state law claims against a non-consenting state defendant,” wrote Judge
Montgomery, so “this Court may not decide the question of whether or to
what
extent the Tribes’ gaming audits received by the State are nonpublic
trade
secret information under §13.37” of the Minnesota Data Practices
Act.
If Shakopee and Grand Portage want to pursue the question of
whether or not gaming audits are “trade secrets” under the Minnesota
Data
Practices Act, ruled Judge Montgomery, that Act “affords the Tribes a
sufficient opportunity to pursue their rights in state district court.”
No case for Shakopee
and Grand Portage to appeal
“Because the State’s summary judgment motion is granted, no
case remains in federal court. Therefore,
the Tribe’s Appeal of Judge
Boylan’s Order [barring Shakopee
and Grand Portage’s motion to appoint independent counsel for DPS
Commissioner
Charlie Weaver] of February 21, 2002, is not reached.”
Judge Montgomery stayed her entry of judgment until July 1,
2002, “to allow the Tribes an opportunity to file an action in state
court
prior to public disclosure of the audit reports.”
Press/ON telephoned tribal
attorneys Steven F. Olson and Greg S. Paulson, of the law firm Bluedog,
Olson
& Small, for comment and to ask these tribal attorneys for Shakopee
and
Grand Portage (BlueDog’s law firm also serves as tribal court judges
for some
of Minnesota’s Dakota communities) if they intended to file in state
court. They had not responded by press
time.
State Court
Ramsey County District Court Judge
Louise Bjorkman found that the audits are “trade secrets” not subject
to public
disclosure under the Data Practices Act in April. As
reported in last week’s issue, Press/ON filed an appeal
with the Minnesota Court of Appeals on June 21st. The State of Minnesota joined this newspaper
in that appeal on Monday, June 24th.
The state lawsuits and the federal lawsuit proceeded
separately, and Press/ON did not join in the federal lawsuit.
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