State ex rel. Steers v. Holovachka, No. 29464

• Docket Nº: No. 29464
• Citation: 142 N.E.2d 593, 236 Ind. 565
• Case Date: May 07, 1957
• Court: Supreme Court of Indiana

Page 593

142 N.E.2d 593

236 Ind. 565

STATE of Indiana, State of Indiana on the Relation of Edwin

K. STEERS, Attorney General, Appellant, v. Metro M. HOLOVACHKA, as Prosecuting Attorney of the 31st

Judicial Circuit, State of Indiana, Appellee.

No. 29464.

Supreme Court of Indiana.

May 7, 1957.

Edwin K. Steers, Atty. Gen., George B. Jeffrey, Deputy Atty. Gen., for appellant.

Albert H. Gavit, Gary, for appellee.

ACHOR, Chief Justice.

On June 15, 1955 the State Examiner of the State Board of Accounts, pursuant to § 60-235, Burns' 1951 Repl. (Acts 1923, ch. 120, § 4, p. 320), filed a report of examination and investigation with the Attorney General, informing the Attorney General that his report and supporting testimony were to be presented to the grand jury of Lake County, Indiana, and that said report contained evidence that one Metro M. Holovachka might have committed certain criminal offenses with regard to certain public works and contracts during the time that he had been City Controller and Chairman of the Board of Public Works of the city of Gary. The examination and investigation was to ascertain whether or not a crime had been committed under § 10-3713, Burns' 1956 Repl. (Acts 1905, ch. 169, § 517, p. 584) and § 48-1247, Burns' 1950 Repl. (Acts 1905, ch. 129, § 46, p. 219; 1907, ch. 254, § 1, p. 538), which prohibits a public officer to become financially interested in public contracts executed under his authority.

Under the statute it became the duty of the Attorney General '* * * to direct, supervise and assist in the prosecution of such crime or offense before such grand jury and in the courts * * *' § 60-234, supra. It being a fact, Holovachka was then (and is now) the Lake County Prosecuting Attorney, the Attorney General thereupon requested him to disqualify himself in the case. The request was refused. The Attorney General then filed a verified application in the Lake Criminal Court for appointment of a special prosecutor, stating the fact of such prosecutor's personal interest in the case, the material allegation stated in the State Examiner's report, and citing the appropriate statutory authority for the action of the State Examiner and of the Attorney General. The appellee, Holovachka, filed a motion to dismiss the application, which motion was sustained. An appeal was then filed to this court.

The state bases its appeal on the ground that the dismissal of its petition for appointment of a special prosecutor constituted an abuse of discretion. On the other hand, appellee contends: (1) that the state has no authority to prosecute this appeal; (2) that the denial of the petition is not an appealable issue; (3) that the facts alleged did not constitute a criminal offense, and, therefore, the dismissal of appellee's petition was proper and did not constitute an abuse of discretion by the trial court, and (4) that no need exists for a special prosecutor.

At the outset, we are presented with the question as to the state's right to appeal this case. Appellee contends that the state cannot now prosecute this appeal because it was not a party to the action below; that it cannot be made a party to the action for the first time on appeal.

Appellee cites the fact that the verified application for the appointment of a special prosecuting attorney, filed with the trial court, was captioned as follows:

'State of Indiana

County of Lake} SS:

In the Criminal Court of Lake County

In the Matter of State Board of Accounts, Field Examiner's

Report No. 97801'

and did not name the State of Indiana as party-plaintiff in the body of the application.

It was not necessary that the state be named plaintiff in the title of such proceedings. The case of In re Darrow, 1910, 175 Ind. 44, 92 N.E. 369, was captioned as follows:

'In the Matter of the Charges against Lemuel Darrow and John W. Talbot'

and this court held the title sufficient. Furthermore, although the salutation of the petition merely names the Attorney General and his deputy as bringing the action, the body of the application alleges facts sufficient to show that the state was the real party in interest in this case, and that the application was filed by the Attorney General acting in his official capacity and representing the State of Indiana under authority of § 60-235, supra. Furthermore, following the submission of the case, the court made the following Order Book entry regarding the parties to the proceedings: 'Comes now the State of Indiana by its Attorney General and comes also Metro M. Holovacka, Respondent, in his own proper person and by counsel, Albert Gavit, in open Court, and this cause is now submitted to the Court. * * *' Appellee did not ask to have the record changed and, if the application was defective as originally filed, this court must assume that it was amended to conform to the facts as determined by the decree of the court.

The state is properly named as appellant under Rule 2-6 of this court, with requires all parties to the judgment seeking relief on appeal to be named as appellants in the assignment of errors. Therefore, we conclude that appellee's contention upon this issue is not well founded.

Appellee also contends that the facts presented to the trial court present no issue of law to this court, first, because no such right of action exists against a prosecuting attorney, and, secondly, if such right does exist, a determination as to such right rests solely within the discretion of the trial court.

Appellee bases his first contention upon the case of Lake County Property Owners Ass'n v. Holovachka, 1954, 233 Ind. 509, 120 N.E.2d 263, 121 N.E.2d 721. In that case this court held that a citizens' committee had no right of action to have a special prosecutor appointed to investigate the alleged irregular acts of the regular prosecutor. However, a distinction exists between that case and the one here to be decided. The decision in that case was justified on the ground that the prosecuting attorney is an elected constitutional officer, with judicial authority over the prosecution of criminal cases arising within his jurisdiction. It is of public interest that he be free and untrammelled in the performance of his duties by persons who have no specific legal authority to inquire into or interfere with his judgment in the performance of his duties. However, a comparable situation does not exist as to the Attorney General when a probable violation of the law is reported to him by the State Board of Accounts affecting an official. The statute imposes a duty on the state examiner to present a report to the grand jury and for the Attorney General to 'direct, supervise and assist in the prosecution of such crime or offense before such grand jury and in the courts * * *' § 60-235, supra. ¹

It must follow that the mandate of the statute carries with it the correlative duty for the Attorney General to maintain and carry the case to its intended conclusion, even though, in doing so, he may be required to contravene the prerogatives of the prosecutor himself, if the official misconduct, so reported to the grand jury, involves the potential indictment of the latter official.

We next consider appellee's contention that the appointment of a special prosecutor rests solely within the discretion of the court, and that from such exercise of discretion there is no appeal. As this court stated in the case of State ex rel. Spencer v. Criminal Court of Marion County, 1938, 214 Ind. 551, 556-557, 15 N.E.2d 1020, 1022, 16 N.E.2d 888:

'* * * It cannot be doubted that, where it is established that the prosecuting attorney is an interested party, or otherwise clearly incapacitated, the court may appoint an attorney to represent the interests of the state. But this may not be done upon mere suspicion or rumor, and upon the mere exparte motion of the judge, and the decisions disclose that in the cases where the appointment of a special prosecutor was upheld, the regular prosecutor had admitted disqualification or incapaicity. The reasoning in the opinions would seem to clearly indicate that a special prosecutor may not be appointed to exercise the functions of the office over the objection of the regular prosecuting attorney, without a judicial determination of the fact of disqualification or interest after an opportunity for the regular prosecutor to be heard * * *.'

When we apply the reasoning of the above case to the facts before us, it follows that although the application for appointment of a special prosecutor was addressed to and invoked the discretionary powers of the trial court, nevertheles the determination of the court must be consistent with the law when applied to the facts. Lake County Property Owners Ass'n v. Holovachka, 233 Ind. 509, 120 N.E.2d 263, 121 N.E.2d 721, supra. The fact that a determination of the issue involves the discretion of the court does not preclude this court from reviewing the acts of the trial court for abuse of discretion. As heretofore stated by this court:

'* * * An abuse of discretion is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. The exercise of a lower court's discretion is not reviewable; it is only the alleged abuse of that power which is reviewable on appeal * * *.' (Our emphasis.) McFarlan v. Fowler Bank City Trust Co., 1938, 214 Ind. 10, 14, 12 N.E.2d 752, 754.

This court has heretofore, on appeal and in original actions for writs of prohibitions, reviewed and passed upon the action of trial courts in appointing special prosecuting attorneys. In some instances this action has been approved. State ex rel. Williams v. Ellis, 1916, 184 Ind. 307, 112 N.E. 98; Williams v. State, 1919, 188 Ind. 283, 123 N.E. 209; Perfect v. State, 1923, 197 Ind. 401, 141 N.E. 52. In other cases the action was not approved. State ex rel. Spencer v....