State v. Romanick

• Decision Date: 03 March 2017
• Docket Number: No. 20160455,20160455
• Citation: 890 N.W.2d 803
• Parties: STATE of North Dakota, Petitioner v. The Honorable Lolita G. Hartl ROMANICK, Judge of the District Court, Northwest Judicial District, and Steven Kukowski, Respondents
• Court: North Dakota Supreme Court

890 N.W.2d 803

STATE of North Dakota, Petitioner

v.The Honorable Lolita G. Hartl ROMANICK, Judge of the District Court, Northwest Judicial District, and Steven Kukowski, Respondents

No. 20160455

Supreme Court of North Dakota.

Filed March 3, 2017

Seymour R. Jordan, State's Attorney, P.O. Box 84, Crosby, N.D. 58730–0084, for petitioner.

Matthew A. Sagsveen (appeared), 500 North 9th Street, Bismarck, N.D. 58501, for respondent The Honorable Lolita G. Hartl Romanick.

Peter D. Welte (argued), P.O. Box 6367, Grand Forks, N.D. 58206–6367, Mark A. Friese (appeared), P.O. Box 1389, Fargo, N.D. 58107–1389, Drew J. Hushka (on brief), P.O. Box 1077, Moorhead, MN 56561–1077, for respondent Steven Kukowski.

Crothers, Justice.

[¶ 1] The State petitions this Court for a supervisory writ requiring the district court to grant the State's motion to amend its criminal complaint against Ward County Sheriff Steven Kukowski to allege that criminal conduct occurred in 2014 rather than 2015. We conclude this is an appropriate case to exercise our discretionary supervisory jurisdiction, and we direct the district court to grant the State's motion to amend the criminal complaint.

I

[¶ 2] In a February 16, 2016, criminal complaint signed by Bureau of Criminal Investigation Special Agent Allen Kluth, the State charged Sheriff Kukowski with three class A misdemeanors pertaining to alleged inadequate inmate care occurring "on or about October 6, 2015." The complaint alleged two counts of reckless endangerment under N.D.C.C. § 12.1–17–03 and one count of a public servant refusing to perform a duty imposed by law under N.D.C.C. § 12.1–11–06. One of the reckless endangerment counts explicitly alleged Sheriff Kukowski willfully created a substantial risk of serious bodily injury to another by failing to provide inmate Dustin Irwin with medical care. The remaining two counts generally alleged Sheriff Kukowski knowingly refused to perform a public duty imposed by law by employing correctional facility staff with inadequate training to ensure inmates received adequate medical care, and Sheriff Kukowski willfully created a substantial risk of serious bodily injury to another by maintaining an inmate population greater than the suggested population for a facility of its size.

[¶ 3] A February 16, 2016, affidavit of probable cause executed by Special Agent Kluth stated:

"1. That on October 3, 2014 Dustin J Irwin was arrested in Ward County and held at the Ward County Correctional Center. While Mr. Irwin was being held in Ward County his health deteriorated over the three days he was held. By the time of his transport, Irwin was incoherent, urinating on himself, disoriented, and had to be physically loaded into the transport vehicle.

"2. On the third day, Sheriff Steven Kukowski and Captain Michael Nason transported Mr. Irwin. He was exchanged for another prisoner held by Burleigh County. Both Kukowski and Nason had to carry Irwin to the Burleigh County vehicle. Upon the Burleigh County Deputy taking custody of Mr. Irwin, he was transported directly to the hospital with emergency lights flashing. Mr. Irwin passed away a short time later.

"3. That Mr. Kukowski was aware of Mr. Irwin's medical state and did not attempt to get Mr. Irwin any medical care, which created a substantial risk of serious bodily injury or death to another. According to Kukowski, Irwin was not transported to get medical attention because of ‘dollars and cents.’ The Ward County Jail was afraid to spend money, according to Kukowski, who was responsible for the jail's budget.

"4. That Mr. Kukowski maintained an inmate population 150% over the suggested population for a correctional center of its size during the time of this incident, which created a substantial risk of serious bodily injury or death to another.

"5. That Mr. Kukowski knowingly employed correctional facility staff and that staff did not have adequate training. Nine correctional officers had been employed for more than a year but had not attended a correctional officer's training course. Mr. Kukowski also did not ensure that inmates had adequate medical care."

[¶ 4] During a December 23, 2016, pre-trial motion hearing several days before a scheduled jury trial, the State moved to amend its complaint to allege the offenses occurred in 2014, claiming the amendment was necessary to correct a clerical mistake. In denying the State's motion the district court found Sheriff Kukowski failed to establish he was misled by the erroneous date in the complaint and he had notice of the correct year of the underlying incident giving rise to the charges. The court nevertheless concluded the amendment would substantially prejudice Sheriff Kukowski's rights by broadening or changing the charges against him because time is an essential element of the offenses under the rationale of United States v. Gammill , 421 F.2d 185 (10th Cir. 1970) and City of West Fargo v. Hawkins , 2000 ND 168, 616 N.W.2d 856. The court explained that the inmate had been dead for a year before the date of the offenses charged in the complaint and that alleging Sheriff Kukowski failed to get the inmate medical care one year after the inmate's death failed to state a crime. The court said time is an element of the offense and a substantial prejudice to Sheriff Kukowski would result if the amendment was permitted.

II

[¶ 5] The State petitioned this Court for a supervisory writ requiring the district court to grant the amendment to correct a clerical error. The State argues the court misapplied the law and claims denying the amendment would result in a grave injustice to the legal process because the affidavit of probable cause, all the evidence and Sheriff Kukowski's own admissions establish the alleged offenses, if proven, occurred in October 2014 rather than October 2015. Sheriff Kukowski responds the State has not offered any reason why reviewing the court's discretionary decision constitutes an extraordinary case warranting a supervisory writ. Sheriff Kukowski also claims the State has adequate alternative remedies, including prosecuting him for the 2015 conduct alleged in the complaint or renewing the motion to amend the complaint at a later date. He also claims the State's continued civil administrative removal proceeding against him as the Ward County Sheriff constitutes an adequate alternative remedy.

[¶ 6] This Court's discretionary authority to issue supervisory writs under N.D. Const. art. VI, § 2, and N.D.C.C. § 27–02–04 cannot be invoked as a matter of right and is exercised on a case-by-case basis, considering the unique circumstances of each case. State v. Louser , 2017 ND 10, ¶ 5, 890 N.W.2d 1 ; State ex rel. Madden v. Rustad , 2012 ND 242, ¶ 5, 823 N.W.2d 767 ; State ex rel. Roseland v. Herauf , 2012 ND 151, ¶ 3, 819 N.W.2d 546 ; State ex rel. Harris v. Lee , 2010 ND 88, ¶ 6, 782 N.W.2d 626 ; Forum Commc'ns Co. v. Paulson , 2008 ND 140, ¶ 8, 752 N.W.2d 177. "We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists." Lee , at ¶ 6."We generally will decline to exercise supervisory jurisdiction if the proper remedy is an appeal." Herauf , at ¶ 3. "Exercise of supervisory jurisdiction may be warranted when issues of vital concern regarding matters of important public interest are presented." Lee , at ¶ 6.

[¶ 7] This case alleges criminal conduct regarding an elected public official's duties and responsibilities to provide adequate medical care for inmates while in the official's custody and control. See United Hosp. v. D'Annunzio , 514 N.W.2d 681, 683 (N.D. 1994) (county responsible for prisoner's medical care while in custody, subject to reimbursement from prisoner); Ennis v. Dasovick , 506 N.W.2d 386, 389 (N.D. 1993) (deliberate indifference to prisoner's serious medical needs violates Eighth Amendment); N.D.C.C. § 12–44.1–14 (administrator of correctional facility shall ensure that inmates have adequate medical care). The underlying allegations of inadequate inmate care by an elected public official implicate a significant and vital public interest in providing accountability for a public official's actions or inactions. The charges against Sheriff Kukowski involve the death of an inmate while involuntarily in governmental custody, which has ramifications beyond those ordinarily associated with a misdemeanor. The unusual nature of the charges involving a public official's duties and responsibilities to inmates in the official's custody and control and the public's interest in the resolution of those charges demonstrate this case is extraordinary.

[¶ 8] We are not persuaded the State has adequate alternative remedies. The State's ability to appeal is limited by N.D.C.C. § 29–28–07. The State could not appeal if Sheriff Kukowski were acquitted by a jury. See Louser , 2017 ND 10, ¶ 6, 890 N.W.2d 1 ; Rustad , 2012 ND 242, ¶ 6, 823 N.W.2d 767. If Sheriff Kukowski were found guilty by a jury and appealed he likely would not raise an issue about the denial of the State's motion to amend the complaint and the possibility the State could raise the issue is remote. See Louser , at ¶ 6 ; Rustad , at ¶ 6. Limiting the prosecution to charges alleged to have occurred in 2015 is an inadequate remedy because it would essentially preclude a prosecution for the charge involving the death of inmate Irwin in October 2014, and could preclude the State from presenting evidence pertaining to inmate care and jail conditions during 2014 or 2015. See Herauf , 2012 ND 151, ¶ 5, 819 N.W.2d 546 (order limiting State from proceeding on one of two alternative theories for driving under the influence does not provide adequate alternative remedy). Additionally, the assertion the State could renew its motion to amend the complaint at a later date ignores the district court's conclusion that time is an essential element of the offenses. Under that conclusion, the...