State v. Berg

• Decision Date: 26 January 1985
• Docket Number: No. 56620,56620
• Citation: 694 P.2d 427,236 Kan. 562
• Parties: STATE of Kansas, Appellant, v. Pamela S. BERG, Appellee.
• Court: Kansas Supreme Court

Page 427

694 P.2d 427

236 Kan. 562

STATE of Kansas, Appellant, v. Pamela S. BERG, Appellee.

No. 56620.

Supreme Court of Kansas.

Jan. 26, 1985.

Syllabus by the Court

1. An attorney hired by the complaining witness to assist the prosecutor pursuant to K.S.A. 19-717 is not a "special prosecutor" within the meaning of K.S.A. 22-2202(11).

2. An attorney hired pursuant to K.S.A. 19-717 is to assist the public prosecutor who is to retain ultimate control of the case, and when the public prosecutor dismisses the complaint the statute does not give the associate counsel the right to take an appeal to an appellate court from the order dismissing the complaint.

3. When one other than the district attorney purports to act for the State on appeal, forcing the district attorney to file a brief amicus curiae to be heard on behalf of the State, the district attorney is considered an appellee for purposes of Supreme Court Rule 7.07(b) on frivolous appeals.

Charles A. O'Hara of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief for appellant.

Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Geary N. Gorup, Asst. Dist. Atty., were on the brief amicus curiae.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a dismissal of charges against Pamela Berg (defendant-appellee). The appeal is brought by the associate counsel for the prosecution who was hired pursuant to K.S.A. 19-717 by the complaining witness, Jerry L. Berg. The State, through the district attorney, filed a brief amicus curiae.

The facts disclose that on February 23, 1982, Pamela Berg went to the home of her ex-husband, Jerry L. Berg, to pick up her children for visitation. There was apparently some disagreement as to whether the children were to leave with their mother. This resulted in a violent altercation between Pamela and Jerry. Subsequently, both parties contacted law enforcement officers to report that he or she had been the victim of a battery by the other. On June 3, 1983, the separate cases were filed. The case against Jerry L. Berg was filed by a deputy district attorney on behalf of the State. The case against Pamela Berg was filed by Jerry Berg, through his counsel, pursuant to K.S.A. 22-2301(1). Mr. Berg had hired private counsel to assist in prosecuting the case as is allowed under K.S.A. 19-717 which provides:

"That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court." (Emphasis added.)

On September 2, 1983, the district attorney's office, after investigating and evaluating both allegations, moved to dismiss the complaint filed against Pamela Berg by Jerry Berg. The reasons for the dismissal were stated in the State's motion for dismissal as follows:

"3. That in the exercise of good faith and sound discretion, the State's attorney believes there is insufficient credible evidence to warrant the continued prosecution of the instant matter and therefore, continued prosecution of this matter would violate the ethical standards governing prosecutors;

"4. That the continued prosecution of this case would create an ethical conflict of interest for the District Attorney, his deputy and assistants in light of the continuing prosecution of [the case against Jerry Berg] and would constitute a usurpation of prosecutorial discretion."

Both the district attorney and Pamela Berg's counsel filed memoranda in support of the motion to dismiss. Jerry Berg's retained counsel filed a memorandum opposing the motion. The hearing was conducted on October 12, 1983. After hearing extensive arguments from counsel, the court took the matter under advisement and issued a Memorandum Opinion on November 10, 1983. In this opinion, the court began by recognizing Mr. Berg's retained counsel as an assistant to the prosecutor under K.S.A. 19-717. The court then noted:

"Associate counsel strenuously objects to the dismissal of this case and in compliance with K.S.A. 19-717, the district attorney has filed his reasons for such dismissal in writing and associate counsel has filed his objections to dismissal in writing and all such reasons and objections have been fully considered by the Court."

The court went on to rule that the reasons for dismissal given by the district attorney were sufficient, and, as the district attorney is in charge of any criminal action filed, he may dismiss such a charge for cause. The court then ordered the case dismissed.

Jerry Berg, through his retained counsel acting as "associate counsel for the prosecution," appealed the dismissal of the charges against Pamela Berg. The parties were ordered to show cause why this court had jurisdiction to hear the appeal in light of our decision in State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984).

The threshold issue in this case, then, is one of jurisdiction. Stated another way: When a district court dismisses a criminal complaint, does the complaining witness's private counsel, retained pursuant to K.S.A. 19-717 as assistant to the prosecutor, have the right to take an appeal from an order of dismissal? If we determine that there is standing for appeal, the issue then becomes whether the district court's order of dismissal complied with the requirements of K.S.A. 19-717.

In February 1984, while this appeal was pending, we decided the Rome case which involved a jurisdictional issue very similar to the one now before us. In determining whether Rome is dispositive of the present case, a detailed review of Rome is warranted.

Richard Rome, a practicing attorney, filed criminal charges of perjury against the sheriff and county attorney of Reno County in connection with their testimony at a hearing which resulted in the removal of Rome from his position as an Associate District Judge. The complaint was filed by Rome, and the trial court served notice to appear on each defendant. The defendants moved to quash the complaint and Rome opposed the motion. After a hearing, the trial court entered an order quashing the complaints. Although Rome did not attend the hearing, he presented his arguments in a written brief. Rome appealed the order quashing the complaint.

The issue before this court was whether a complaining witness had the right to take an appeal from an order entered by a district court dismissing a criminal complaint. In the course of the per curiam opinion, we noted there is no specific statute in Kansas which allows the complaining witness to appeal from the dismissal of a criminal case. Since the right to appeal is statutory, the absence of a statute indicated there was no right to appeal. We then reviewed Kansas court decisions throughout our judicial history demonstrating the fact that "a private individual has no right to prosecute another for crime and no right to control any criminal prosecution when one is instituted.... [T]he philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor." 234 Kan. at 945, 678 P.2d 146. As was noted in the opinion, there is an abundance of authority in Kansas for the rule that the public prosecutor is to control criminal cases. State ex rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981); State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978); State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973); State v. Kilpatrick, 201 Kan. 6, 17, 439 P.2d 99 (1968); State ex rel. v. Court of Coffeyville, 123 Kan. 774, 256 Pac. 804 (1927); Foley v. Ham, 102 Kan. 66, 169 Pac. 183 (1917); In re Broadhead, 74 Kan. 401, 86 Pac. 458 (1906); State v. Brown, 63 Kan. 262, 65 Pac. 213 (1901); State v. Wells, 54 Kan. 161, 165, 37 Pac. 1005 (1894); State v. Wilson, 24 Kan. 189 (1880); Jackson v. State, 4 Kan. 150 (1867).

This philosophy is incorporated into the Kansas Code of Criminal Procedure. See K.S.A. 22-2104 (criminal prosecutions to be brought in the name of the State of Kansas); 22-2202(19) (definition of "prosecuting attorney" as one authorized by law to appear on behalf of the State); 22-2301 (copy of complaint must be supplied to county attorney); 22-3201(6) (prosecuting attorney to endorse names of all witnesses on the complaint, information or indictment); 22-3602(b) (when the prosecution may appeal from order of the district court); 19-702 (county attorney had duty to appear and prosecute on behalf of the State); 19-711 (in absence of county attorney, the court may appoint an acting county attorney); 19-715 (judges may appoint temporary county attorney for their district); 19-717 (prosecuting witness may employ, at his own expense, an attorney to assist the county attorney.)

After quoting at length from the American Bar Association Standards relating to the Prosecution Function, wherein it is stated the prosecution function should be performed by a public prosecutor and not a private party, we concluded, "It is thus clear that the national tradition, as well as the Kansas tradition, requires that the person representing the state in a criminal proceeding must be a law-trained, independent public prosecutor rather than a vengeful persecutor." Rome, 234 Kan. at 951, 678 P.2d 146. Thus, the complaining witness had no standing to take the appeal, and we dismissed the case for lack of jurisdiction.

Efforts by Mr. Berg's attorney to distinguish Rome are without merit.

The distinction...