Bradley Dean Derksen v. Commissioner of Public Safety

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0249

Bradley Dean Derksen,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

Filed August 19, 2024
Reversed and remanded; motion granted
Reyes, Judge

McLeod County District Court
File No. 43-CV-23-817

Christopher D. Cain, Kohlmeyer Hagen Law Office, Chtd., Mankato, Minnesota (for
respondent)

Keith Ellison, Attorney General, Alexandra M. Robinson, Assistant Attorney General,
St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Reyes, Judge; and Kirk,

Judge. ∗

SYLLABUS

When the record lacks any evidence of a prior written or oral order to produce

additional discovery by a specific deadline, a district court abuses its discretion by

rescinding a driver’s license revocation as a sanction to the commissioner of public safety

∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
for failing to provide discovery beyond that required under Minn. Stat. § 169A.53, subd.

2(d) (2022).

OPINION

REYES, Judge

In this appeal from the district court’s order rescinding the revocation of

respondent’s driver’s license, appellant commissioner of public safety (the commissioner)

argues that the district court abused its discretion by granting rescission as a sanction for

the commissioner’s alleged failure to comply with a discovery order because there is no

written or oral discovery order in the record. We reverse and remand.

FACTS

In April 2023, appellant Minnesota Commissioner of Public Safety revoked

respondent Bradley Dean Derksen’s driver’s license after his arrest for driving while

impaired. Respondent petitioned for an implied-consent hearing under Minn. Stat.

§ 169A.53, subd. 2 (2022), and requested that the district court rescind his license

revocation. In September 2023, the commissioner sent respondent a mandatory-discovery

notice and disclosure letter under Minn. Stat. § 169A.53, subd. 2(d), and Minn. R. Civ. P.

34.02. The notice provided that the commissioner would allow respondent to inspect or

receive a mailed copy of the statutorily required discovery. It also stated that respondent

could inspect additional documents concerning his alcohol-concentration test by contacting

the Bureau of Criminal Apprehension and request a copy of the recording made when an

officer provided him with the breath-test advisory by contacting the McLeod County

Sheriff’s Office.

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 The district court set the implied-consent hearing for October 26, 2023. On October

24, respondent filed a motion to compel discovery, specifically requesting “a copy of the

breath[-]test[-]advisory recording, as well as all audio/videos, and any other discoverable

material[s]” in the commissioner’s possession related to the matter. Respondent alleged

that, although he had requested the information from the sheriff’s office on October 13, he

had not received any additional discovery. On October 25, the commissioner sent all the

evidence in their possession to respondent, including the documents referenced in the

disclosure letter and “a jail video” they had obtained.

The district court did not hold a hearing on October 26, and there is no transcript or

other formal record. Instead, the record only reflects that the district court “had a

conversation with counsel” and rescheduled the implied-consent hearing, but did not

otherwise issue a written order.

A second district court judge presided over the continued implied-consent hearing

in November 2023, and a different attorney appeared for the commissioner. The parties

disputed what had occurred at the October hearing; specifically, whether the first district

court judge had ordered the commissioner to provide respondent with additional discovery.

Respondent’s counsel stated, “I don’t think any official order was issued at [the October

hearing],” but that the first judge had said, “Get [respondent] everything he needs;

otherwise, if this comes back, I’m going to rescind the revocation.” Respondent’s counsel

later noted that “[w]hile there wasn’t a written order,” counsel thought “[the first judge]

was very clear.” Respondent acknowledged receiving the police reports and the jail videos

from the commissioner regarding the implied-consent advisory, but maintained that the

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commissioner had failed to provide the additional discovery that he had requested. The

second district court judge stated that the judicial notes from the October hearing indicated

only “discovery issues, working through those issues, continued to November.” 1 The

commissioner argued that “the [first district court judge] did not order [the commissioner]

to get any additional video from the [sheriff’s office],” that they had provided respondent

with everything in their possession, including the statutorily required discovery, and that

they wanted a court order before requesting further information from the sheriff’s office.

The commissioner expressed concern that the sheriff’s office, as the custodians of the data,

may “have Minnesota Government Data Practices Act concerns about disclosing evidence”

because it had not yet charged the criminal case. The commissioner also noted that, “if the

[c]ourt is going to consider [rescinding the license revocation], [the commissioner] would

ask for a court order in order to go get that evidence from the proper party rather than

outright rescinding this case.” The district court took the matter under advisement.

The district court later issued an order granting respondent’s petition to rescind the

revocation of his driver’s license. In its order, the district court noted that, at the October

hearing, the first district court judge “directed the [commissioner] to provide all discovery

or failure to do so would likely result in the revocation being rescinded.” The district court

denied the commissioner’s request to reconsider.

This appeal follows.

1
These judicial notes are not part of the record.

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 ISSUE

Did the district court abuse its discretion when it rescinded respondent’s driver’s

license revocation as a sanction to the commissioner for failing to provide additional

discovery under Minn. Stat. § 169A.53, subd. 2(d)?

ANALYSIS

The commissioner argues that the district court abused its discretion by imposing

rescission as a sanction because the commissioner provided all statutorily required

discovery, and the district court did not order the commissioner to provide additional

discovery. The commissioner further contends that its motion to strike an affidavit that

respondent filed in his addendum on appeal must be granted. We agree.

As an initial matter, we address the commissioner’s motion to strike. In his

addendum, respondent included an affidavit from his counsel at the district court regarding

that counsel’s recollection of the October hearing. This affidavit was not filed with the

district court and was signed only after this appeal was filed. The commissioner filed a

motion to strike the affidavit and any part of respondent’s brief that references the affidavit,

arguing that the affidavit is outside the record on appeal and therefore should not be

considered.

The Minnesota Rules of Civil Appellate Procedure are clear that documents not filed

with the district court are not part of the record on appeal. See Minn. R. Civ. App. P.

110.01 (“The documents filed in the trial court, the exhibits, and the transcript of the

proceedings, if any, shall constitute the record on appeal in all cases.”); see also Star Trib.

Co. v. Univ. of Minn. Bd. of Regents, 667 N.W.2d 447, 449 n.2 (Minn. App. 2003) (striking

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two affidavits included in appellant’s appendix and portions of appellant’s brief referencing

affidavits which were not before district court when it issued order that was subject of

appeal), aff’d, 683 N.W.2d 274 (Minn. 2004). We therefore grant the commissioner’s

motion to strike and will not consider the affidavit or any part of respondent’s brief that

refers to it.

We now turn to the primary issue of whether the district court abused its discretion

by rescinding the revocation of respondent’s driver’s license as a sanction to the

commissioner for failing to provide discovery. “If a party . . . fails to obey an order to

provide or permit discovery . . . the court in which the action is pending may make such

orders in regard to the failure as are just,” including “rendering a judgment by default

against the disobedient party.” Minn. R. Civ. P. 37.02(b)(3) (emphasis added). 2 Appellate

courts review a district court’s discovery-related orders for an abuse of discretion. Frontier

Ins. Co. v. Frontline Processing Corp., 788 N.W.2d 917, 922 (Minn. App. 2010), rev.

denied (Minn. Dec. 14, 2010). A district court abuses its discretion by making “findings

unsupported by the evidence or by improperly applying the law.” Underdahl v. Comm’r

of Pub. Safety (In re Comm’r of Pub. Safety), 735 N.W.2d 706, 711 (Minn. 2007).

Appellate courts “give great deference to a district court’s findings of fact and will not set

them aside unless [they are] clearly erroneous.” State v. Andersen, 784 N.W.2d 320, 334

(Minn. 2010). “Findings of fact are clearly erroneous if, on the entire evidence, we are left

with the definite and firm conviction that a mistake occurred.” Id.

2
We consider default judgment to be the equivalent of rescinding a driver’s license
revocation in these circumstances.

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 Minnesota law provides for judicial review of license revocation and states that the

mandatory prehearing discovery is “limited” to: (1) “the notice of revocation,” (2) “the test

record or, in the case of blood or urine tests, the certificate of analysis,” (3) “the peace

officer’s certificate and any accompanying documentation submitted by the arresting

officer to the commissioner,” and (4) “disclosure of potential witnesses, including experts,

and the basis of their testimony.” Minn. Stat. § 169A.53, subd. 2(d); see also Abbott v.

Comm’r of Pub. Safety, 760 N.W.2d 920, 923-24 (Minn. App. 2009). “Other types of

discovery are available only upon order of the court.” Minn. Stat. § 169A.53, subd. 2(d)

(emphasis added).

Here, the parties do not dispute that the commissioner provided all mandatory

discovery to respondent before the October hearing and that the district court rescinded the

license revocation solely because the commissioner did not provide “additional discovery.”

The parties also appear to agree that, for the second district court judge to have rescinded

respondent’s driver’s license as a sanction to the commissioner properly, the first district

court judge must have ordered the commissioner to provide additional discovery, see

Minn. R. Civ. P. 37.02(b), and that an oral order would have been sufficient. The parties

do dispute whether the first district court judge issued an oral order requiring the

commissioner to provide additional discovery to respondent.

By sanctioning the commissioner for failing to comply with the October discovery

order, the district court implicitly found that the first district court judge ordered the

commissioner to furnish discovery beyond that required by statute. Based on our review,

we conclude that the district court’s implicit finding is not supported by the record. It is

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undisputed that no transcript or written order exists for the October hearing, apart from the

order continuing the implied-consent hearing to November. Although the parties’

attorneys made arguments regarding the October hearing and its outcome, those arguments

are not evidence. See State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004) (“[T]he

‘questions and arguments’ of attorneys are not evidence.”) Moreover, those arguments do

not support that the district court issued an oral order at the October hearing. At the

November hearing, neither party explicitly stated that the first district court had issued an

oral order requiring the commissioner to provide additional discovery. To the contrary,

respondent’s counsel stated that he did not think that the district court had issued “any

official order.”

We further note that, while we acknowledge that district courts have discretion to

impose discovery sanctions, default judgment is a severe penalty. The supreme court has

stated that the “primary objective of the law [is] to dispose of cases on the merits,” Firoved

v. Gen. Motors Corp., 152 N.W.2d 364, 368 (Minn. 1967), a goal that default judgment

does not advance. In addition, a proper discovery order would need to include both a clear

description of what additional evidence the commissioner needed to disclose and the

deadline for doing so. See Chicago Greatwestern Off. Condo. Ass’n v. Brooks, 427 N.W.2d

728, 730-31 (Minn. App. 1988) (comparing default judgment to dismissal in its severity

level); Bio-Line Inc. v. Wilfley, 365 N.W.2d 338, 340-41 (Minn. App. 1985) (noting that

dismissal is inappropriate sanction when no specific deadline is ordered for compliance

with discovery order and that district courts should instead establish compliance deadlines

and only dismiss if compliance does not occur), rev. denied (Minn. July 26, 1985). Any

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subsequent order granting outright rescission as a sanction should be granted only in

exceptional circumstances. C.f. Firoved, 152 N.W.2d at 368 (noting that district courts

should impose sanction of dismissal with prejudice on procedural grounds “only under

exceptional circumstances”).

Moreover, caselaw shows that factors to be considered when determining whether

to grant default judgment include “the needs of the discovery party” and “the nature of the

non-compliance,” as well as “how the absence of such evidence not produced would impair

the other party’s ability to establish their case and whether the non-complying party’s

conduct in not producing documents would deprive the other party of a fair trial.” Brooks,

427 N.W.2d at 731. Here, the only factor the district court considered was the

commissioner’s noncompliance with the first district court judge’s purported direction.

Based on the limited record before us, the district court’s reasoning is insufficient to

support the severe sanction of rescission.

We conclude that the district court’s implicit factual finding that the first district

court judge ordered the commissioner to provide additional discovery is clearly erroneous

because it is not supported by the record. Andersen, 784 N.W.2d at 334; Underdahl, 735

N.W.2d at 711. The district court therefore abused its discretion by sanctioning the

commissioner on that ground.

DECISION

When the record lacks any evidence of a prior written or oral order to produce

additional discovery by a specific deadline, a district court abuses its discretion by

rescinding the revocation of a driver’s license as a sanction to the commissioner for failing

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to provide discovery beyond that required under Minn. Stat. § 169A.53, subd. 2(d).

Because the district court abused its discretion by sanctioning the commissioner here, we

reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded; motion granted.

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