The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court is the Expedited Motion to Quash Subpoena and Dismiss State Court Contempt Proceedings (Dkt. 2) filed on behalf of Lana Duke, Area Specialist-Single Family Housing, Rural Development, United States Department of Agriculture; Mary Sajna, General Counsel, United States Department of Agriculture; and Wally Hedrick, Director, Rural Development, United States Department of Agriculture, by and through Nicholas J. Woychick, Assistant United States Attorney for the District of Idaho ("AUSA Woychick"). The motion seeks to quash the state court subpoena that was issued to Lana Duke in the case of State of Idaho v. Holli Telford Lundahl, Case No. CR-2011-00719 (Oneida County, Idaho) ("state court proceedings"); deny Ms. Lundahl's state court motions for contempt; dismiss her contempt proceedings; and vacate the hearing on the motions for contempt scheduled for January 24, 2012 in Oneida County. For the reasons set forth below, the Court enters the following Order granting the motion.
On or about August 9, 2011, a criminal action was commenced against Ms. Lundahl in Oneida County by the filing of a search warrant application in the state court proceedings. Notice of Removal, ¶ 1, Dkt. 1; Declaration of Nicholas J. Woychick ("Woychick Dec."), Ex. C, Dkt. 3-3. On or about October 31, 2011, apparently at Ms. Lundahl's pro se request, the state court issued a subpoena duces tecum to "Lana Duke, Agent for USDA, Rural Development Department, Preston Division" commanding her appearance on December 1, 2011 at 9:30 a.m. to respond to certain specified questions. Woychick Dec., Ex. A, Dkt. 3-2. The subpoena was served on or about November 4, 2011. Id.
On November 17, 2011, AUSA Woychick sent a letter to Ms. Lundahl advising her that the subpoena was defective and invalid under Idaho law; that it was flawed under federal law for failure to comply with the USDA's Touhy regulations, 7 C.F.R. §§ 1.210, et seq. (which prohibits USDA employees from appearing, testifying, or providing documents in judicial or administrative proceedings unless they are authorized in accordance with the USDA's regulations); and that according to Ninth Circuit case law, state courts do not have jurisdiction to issue subpoenas to federal employees for testimony arising out of their official duties. Id., Ex. B, Dkt. 3-2. The letter, a copy of which was provided to the presiding state court judge and the County Prosecutor, requested that Ms. Lundahl withdraw the subpoena. Id. It concluded by stating that the subpoena would not be honored. Id. Ms. Lundahl did not withdraw the subpoena.
The December 1, 2011 hearing was vacated and reset for December 9, 2011, without notice to Ms. Duke. Accordingly, Ms. Duke did not appear at the hearing.
On January 10, 2012, Ms. Lundahl filed two pro se motions in state court: (1) A motion for criminal contempt decree entitled: "Motion for Order
Decreeing Prosecutor Dustin Smith, USDA General Counsel Mary Sajna, USDA Director Wally Hedrick, USDA Agent Lana Duke, and Sheriff Jeff Semrad in Criminal Contempt for Conspiring to Defeat a Properly Served Criminal Subpoena to Respond to Six Written Deposition Questions as Authorized Under Idaho Criminal Rules 15(e) and 15(g) that would have Defeated Counts X, XI, XII, XIII, and XIV of the Criminal Complaint as Related to the Obstruction to Produce Evidence." Woychick Dec., Ex. C, p. 5, Dkt. 3-3.
(2) A motion for criminal contempt decree and sanctions entitled: "Motion for Order Decreeing Prosecutor Dustin Smith, USDA General Counsel Mary Sajna, USDA Director Wally Hedrick, USDA Agent Lana Duke, and Sheriff Jeff Semrad in Criminal Contempt for Conspiring to Defeat a Properly Served Criminal Subpoena to Respond to Six Written Deposition Questions as Authorized Under Idaho Criminal Rules 15(e) and 15(g) that would have Defeated Counts X, XI, XII, XIII, and XIV of the Criminal Complaint and to Issue Sanctions Which Include Striking Counts X, XI, XII, XIII, and XIV of the Criminal Complaint as Related to the Obstruction to Produce Evidence." Id.
A hearing on the motions is set for January 24, 2012 at 10 a.m. in state court.
On January 18, 2012, AUSA Woychick filed a Notice of Removal of the contempt motions to the United States District Court pursuant to 28 U.S.C. §§ 1442(a)(1), 1446 (c)(1), and 1446(c)(3). Dkt. 1.
At the outset, the Court must determine whether the motions have been properly ...