State ex rel. Wild v. Otis, s. 46898

• Decision Date: 12 August 1977
• Docket Number: 46882,Nos. 46898,s. 46898
• Parties: STATE of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant, v. James C. OTIS, Esquire, Respondent. STATE of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant, v. Oscar R. KNUTSON, Esq., et al., Respondents.
• Court: Minnesota Supreme Court

Page 361

257 N.W.2d 361

STATE of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant, v. James C. OTIS, Esquire, Respondent.

STATE of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant, v. Oscar R. KNUTSON, Esq., et al., Respondents.

Nos. 46898, 46882.

Supreme Court of Minnesota.

Aug. 12, 1977.

Syllabus by the Court

1. Appellant judges must decide for themselves whether recusal is required in case in which party claims bias.

2. A private citizen has no authority to commence and maintain private prosecutions for alleged violations of criminal law.

J. J. Wild, pro se.

Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Thomas Jensen, Sp. Asst. Atty. Gen., Briggs & Morgan and Leonard J. Keyes, St. Paul, for respondents.

Considered and decided by SHERAN, C. J., and YETKA, SCOTT, WINTON, ^* and PREECE,* JJ., without oral argument.

SHERAN, Chief Justice.

These consolidated appeals raise the issue of whether a private citizen may commence and maintain private prosecutions for alleged violations of the criminal law. We hold that he may not.

Prior to commencing the present action, plaintiff, J. J. Wild, requested the county attorneys of Ramsey and Hennepin Counties to approve criminal complaints which he had prepared against defendants, but the respective county attorneys refused to prosecute. Plaintiff then tried unsuccessfully to persuade the grand juries of the two counties to issue indictments. Finally, plaintiff filed complaints himself in an attempt as a private citizen to prosecute defendants.

The complaint against defendants filed in Ramsey County alleged a violation of the criminal laws against conspiracy to commit a crime, Minn.St. 609.175, subd. 2, and corruptly influencing a legislator, § 609.425. The complaint against defendant Mr. Justice James C. Otis in Hennepin County alleged a violation of the criminal law against perjury, § 609.48. The complaints requested that the named defendants be convicted and sentenced according to law. The respective complaints were dismissed by the district courts of Ramsey and Hennepin Counties, and these appeals from judgments followed.

1. A preliminary issue is presented by the affidavits of prejudice which plaintiff has filed against the special panel of justices considering his appeal.

Section 3.42, and the commentary thereto, of the A. B. A. Standards of Judicial Administration, Standards Relating to Appellate Courts (Approved Draft, 1977), state the appropriate standards and procedures to be followed in the case of challenges such as this:

"3.42 Disqualification of Judges.

"A judge of an appellate court should be subject to disqualification on the grounds set forth in the Code of Judicial Conduct recommended by the American Bar Association, and in any case in which the judgment under review is one by a court in whose decision he participated as judge in a lower court.

"Commentary

"An appellate judge should be subject to challenge for cause on the same grounds as a trial judge, and also when an appeal involves a review of his own decision. The most difficult problem concerns the procedure to be employed. As in the challenge of a trial judge, if the challenge is sufficient on its face and any reasonable doubt of the judge's disinterestedness is suggested, the judge may be expected to disqualify himself. If he does not do so, in the case of a trial judge factual issues relating to disqualification should properly be determined by another judge. See § 2.32, Standards Relating to Trial Courts. In the case of an appellate judge, however, that procedure would subject the judge to decision of his disinterestedness by official peers with whom he may continue to serve in a collegial capacity in deciding the case. Moreover, because an appellate court decides questions of law rather than fact, the question of an appellate judge's 'bias' is often practically indistinguishable from the question of his views on the law, which are not properly subject to disputation through the recusal procedure. Given these complications, it is better that the question of recusal be decided by the judge himself. If he is a judge of an intermediate appellate court, there remains the remedy of appeal from a decision in which he participates; if he is a judge of a supreme court, reliance must be placed on his recognition that a court should not only be disinterested but that it should appear to be so.

"In some jurisdictions, provision for peremptory challenge of a trial judge is permitted. See Commentary to § 2.32(b), Standards Relating to Trial Courts. This procedure is inappropriate in the case of an appellate judge. In the collegial decision-making of an appellate court an individual judge's purely personal views are of less significance than they would be in a trial court and he is subject to collegial restraint should he be inclined to act on them; an appellate judge has few occasions for exercising the broad discretion reposing in a trial judge; and in appellate litigation there is no occasion for the intense personal interaction between the judge and the lawyers and litigants that may occur in a trial court. Moreover, an appellate judge's established views on law and justice, at least up to a point, are a proper element of the contribution he makes to the function of an appellate court, particularly in the development of the law. A peremptory challenge might easily be abused to exclude a judge solely because a litigant disagreed with his views."

The three justices of the supreme court and the two district court judges assigned to the hearing of this matter pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2, have applied these standards for recusal and have determined that the affidavit of prejudice filed by plaintiff against them is without justification. District Court Judge Warren A. Saetre, originally assigned to consider this case, has recused for personal reasons.

2. As stated earlier, the issue which plaintiff raises in his appeal is whether a private citizen may commence and maintain private prosecutions for alleged violations of the criminal law.

In answering this question, we start with Rule 17.01, Rules of Criminal Procedure. This rule contemplates that felonies are to be prosecuted by either indictment or complaint. The rule does not mention or allude to any right of private citizens to commence and maintain criminal prosecutions privately.

Rule 2.02, Rules of Criminal Procedure, governing prosecution by complaint, provides as follows:

"A complaint shall not be filed or process issued thereon without the written approval, endorsed on the complaint, of the prosecuting attorney authorized to prosecute the offense charged, unless such judge or judicial officer as may be authorized by law to issue process upon the offense certifies on the complaint that the prosecuting attorney is unavailable and the filing of the complaint and issuance of process thereon should not be delayed."

This rule is in accord with A. B. A. Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971), § 2.1, which provides: "The prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline."

The comment to Rule 2.02, Rules of Criminal Procedure, states that "Rule 2.02 leaves to other laws the question of the available remedy when a local prosecutor refuses to approve a complaint." One obvious available remedy is for the aggrieved citizen to try to appear before the grand jury and persuade it to indict. While a citizen does not have a right to appear before the grand jury, ...