State v. Hart, No. A05-2066.

• Decision Date: 02 November 2006
• Docket Number: No. A05-2066.
• Citation: 723 N.W.2d 254
• Parties: In re STATE of Minnesota, Petitioner, State of Minnesota, Respondent, v. Beth Luann HART, Appellant.
• Court: Minnesota Supreme Court

723 N.W.2d 254

In re STATE of Minnesota, Petitioner State of Minnesota, Respondent, v. Beth Luann HART, Appellant.

No. A05-2066.

Supreme Court of Minnesota.

November 2, 2006.

COPYRIGHT MATERIAL OMITTED

Mark D. Kelly, Esq., Law Offices of Mark D. Kelly, St. Paul, MN, for Appellant.

Jan Kolb, Esq., Mark J. Herzing, Mille Lacs Asst. County Attorney, Milaca, MN, for Respondent.

Thomas R. Ragatz, Attorney General's Office, Lawrence Hammerling, Deputy State Public Defender, St. Paul, MN, for Amicus.

Heard, considered, and decided by the court en banc.

OPINION

GILDEA, Justice.

This case presents the narrow question of whether, after a district court issues a pretrial order dismissing a criminal complaint "with prejudice" and "in the interests of justice," the state can refile the complaint and obtain a writ of mandamus compelling the district court to make a probable cause determination on the refiled complaint. The court of appeals granted, in part, the state's petition for writ of mandamus and vacated the district court's dismissal order, finding the order to be an abuse of discretion. The court of appeals concluded that the state was free to refile the complaint. Because we conclude that the district court had the authority to dismiss the case in the interests of justice, we reverse the decision of the court of appeals to the extent that it vacated the district court order. We also conclude, however, that the state could refile the complaint, and we affirm the court of appeals' decision to the extent that it ordered the district court to make a probable cause determination on the refiled complaint.

On December 29, 2004, the state filed a complaint charging Beth Luann Hart with four counts of controlled substance crimes in the first degree. The complaint was twice amended and the omnibus hearing was rescheduled at least five times. Ultimately, the omnibus hearing was scheduled for September 16, 2005. The hearing was called at 10:00 a.m. on the morning of September 16. At 10:30 a.m., the prosecutor still had not appeared, and the district court granted Hart's motion to dismiss. The district court signed a form on September 16 indicating that the case was dismissed for "lack of prosecution—with prejudice."¹

Later that day, the state refiled the complaint against Hart. On September 19, the district court issued a formal order and memorandum dismissing the complaint "with prejudice."² The memorandum indicates that the dismissal was made "in the interests of justice and as a deterrent to continued failures to appear." Additionally, the memorandum notes that the "strong sanction of a dismissal" was appropriate in the case because the prosecutor was "cavalierly absent from the hearing." The district court took no action on the refiled complaint except to write on the face of the document, "complaint denied see K6-04-1473" (which is the case number of the action the district court dismissed on September 16).

On October 19, the state petitioned the court of appeals for a writ of mandamus to require the district court to sign the state's refiled complaint. The court of appeals granted the writ in part and vacated the "September 16 and September 19 dismissal orders." We granted Hart's petition for review, and we now affirm in part and reverse in part.

I.

When there are issues of law, we review the court of appeals' decision to grant a writ of mandamus using a de novo standard. McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989). A writ of mandamus "may be issued to any inferior tribunal * * * to compel the performance of an act which the law specially enjoins as a duty" or "to exercise its judgment or proceed to the discharge of any of its functions." Minn.Stat. § 586.01 (2004).³ Mandamus, however, is "an extraordinary legal remedy." State v. Pero, 590 N.W.2d 319, 323 (Minn.1999). The writ may not be issued to "control judicial discretion." Minn.Stat. § 586.01.

On review of a decision of the court of appeals, we determine whether each element of the mandamus test is satisfied. McIntosh, 441 N.W.2d at 118. Thus, we ask (a) whether the district court had either a clear and present duty to perform an act or abused its discretion by not performing the act, and (b) whether alternative remedies were available to the party seeking the writ making the issuance of a writ unnecessary. Id. at 119. A writ of mandamus "shall not issue in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law," Minn.Stat. § 586.02 (2004), and we have said that when a party has a right to appeal, a writ of mandamus is ordinarily not available, see State v. Wilson, 632 N.W.2d 225, 227 n. 4 (Minn.2001).

A.

Because the existence of an adequate legal remedy precludes a party's ability to seek a writ of mandamus, we first address whether the state had a right to appeal the district court's dismissal of the complaint. A prosecuting attorney may appeal "from any pretrial order of the trial court, including probable cause dismissal orders based on questions of law. However, an order is not appealable * * * if it is an order dismissing a complaint [in the furtherance of justice] pursuant to Minn.Stat. § 631.21 * * *."⁴ Minn. R.Crim. P. 28.04, subd. 1(1).

Hart argues that the district court's order was appealable. Hart notes that the court can dismiss a case for unnecessary delay by the prosecution under Minn. R.Crim. P. 30.02, and that dismissals under this rule are appealable.⁵ The district court's order, however, did not make any reference to this rule or to an "unnecessary delay." The order indicates that the complaint was dismissed "with prejudice." We have said that this phrase "is inconsequential" when used, as in this case, before jeopardy has attached. City of St. Paul v. Hurd, 299 Minn. 51, 55-56, 216 N.W.2d 259, 262 (1974).⁶ We look instead to the "basis of the dismissal" to determine whether the state could appeal. See City of St. Paul v. Halvorson, 301 Minn. 48, 51, 221 N.W.2d 535, 537 (1974). The district court's memorandum explained that it dismissed the case "in the interests of justice." A dismissal in the "interests of justice" is not appealable under our case law or under Minn. R.Crim. P. 28.04.⁷

Rather than appeal, our case law dictates that the state's remedy, when a complaint has been dismissed "in the interests of justice," is to refile the complaint. See, e.g., State v. Streiff, 673 N.W.2d 831, 838 (Minn.2004) ("[A Minn.Stat. § 631.21] dismissal ordinarily [does not preclude] the prosecutor from recharging the accused. * * * `While dismissing the complaint under section 631.21 might have avoided the need for a stay of adjudication, the prosecutor would have been free to reinstate identical criminal charges against [the defendant].'" (quoting State v. Krotzer, 548 N.W.2d 252, 255 (Minn.1996))); State v. Fleck, 269 N.W.2d 736, 737 (Minn.1978) (holding that when a case is dismissed in the furtherance of justice, "[t]he state's remedy is not an appeal but to either reissue the amended complaint or try to get the court to reconsider its decision"); State v. Shaw, 264 N.W.2d 397, 398 (Minn. 1978) (noting that after a dismissal for lack of probable cause or a dismissal pursuant to section 631.21, "it is clear that the prosecutor is free to reissue the complaint"); City of St. Paul v. Landreville, 301 Minn. 43, 46-47, 221 N.W.2d 532, 534 (1974) ("[W]hen referring to dismissals the words `with prejudice' or `permanently' must be held to be superfluous. Jeopardy has not attached * * * and the prosecution cannot be held to be prohibited from commencing another action should circumstances dictate."). This remedy of refiling the complaint is also consistent with the logic behind Rule 28.04. See Minn. R.Crim. P. 29.03 cmt. (1975) (noting that appeals from Minn.Stat. § 631.21 dismissals are not allowed because "the prosecuting authority does not need the right of appeal since it may reinstate its case by other means").⁸

Because the state could not appeal from the district court's dismissal "with prejudice" and "in the interests of justice," the state did not have an alternative, adequate remedy. Thus, the state was not procedurally precluded from petitioning for a writ of mandamus.⁹

Amicus curiae Minnesota Attorney General and amicus curiae State Public Defender note that allowing the state simply to refile a complaint that was dismissed "in the interests" of justice undermines the district court's finding that the action needed to be dismissed to serve the ends of justice. We acknowledge that our jurisprudence has created a tension between a district court's authority to dismiss a complaint in the interests of justice, and the prosecutor's right, upon such a dismissal, to refile the complaint. The limited record before us does not provide a vehicle for us to address this tension. Accordingly, we refer to the Supreme Court Advisory Committee on Rules of Criminal Procedure the question of whether our rules should be amended to delete the prohibition of appeals by the state from dismissals pursuant to Minn.Stat. § 631.21, or whether other changes in the rules are necessary to address this tension.

B.

We turn next to the substantive question, which asks whether the district court either (1) had a clear and present duty to perform an act, or (2) abused its discretion by not performing an act. Minn.Stat. § 586.01 (2004); McIntosh, 441 N.W.2d at 119. The state argues that the district court had a clear and present official duty to sign the refiled complaint. We agree that the district court had a clear and present official duty here with regard to the refiled complaint. The Minnesota Rules of Criminal Procedure require that the district court must examine each complaint filed to determine whether it is supported by probable cause. See Minn. R.Crim. P. 2.01 ("Upon the information presented, the judge or judicial officer shall determine whether there is probable cause to believe that an offense has been...