State v. Serstock
| Decision Date | 22 July 1986 |
| Docket Number | No. C3-86-264,C3-86-264 |
| Citation | 390 N.W.2d 399 |
| Parties | STATE of Minnesota, Appellant, v. Emanuel A. SERSTOCK, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Pretrial order dismissing an indictment is appealable of right by the State.
2. Indictment simply alleging that city attorney violated Code of Professional Responsibility (1970) and Ethics Code of the Minneapolis City Attorney did not state offense under public officer misconduct statute.
Indictment alleging that city attorney interfered with speeding tickets issued outside his jurisdiction in violation of statutory authority stated offense under misconduct statute.
3. Language of indictment alleging city attorney exceeded his statutory authority was sufficient under Minnesota law.
Hubert H. Humphrey, III, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Mary Magnuson, Spec. Asst. Atty. Gen., St. Paul, for appellant.
David G. Roston, Segal & Roston, Minneapolis, for respondent.
Heard, considered and decided by SEDGWICK, P.J., and PARKER and FORSBERG, JJ.
The State of Minnesota appeals from an order dismissing an indictment charging three counts of misconduct by a public officer arising out of respondent Emanuel Serstock's alleged "ticket fixing." We affirm in part, reverse in part and remand for trial.
Serstock was the Deputy City Attorney for the City of Minneapolis from 1975 until October 1985. During that time, he had complete supervisory authority over the city's prosecution of criminal offenses. As a result of alleged "ticket fixing" activities, Serstock was indicted by a grand jury for violating the public officer misconduct statute, Minn.Stat. § 609.43(2) (1984). Count I of the indictment alleges that Serstock, while financially indebted to Erwin Dauphin, dismissed or wrongfully delayed numerous parking tickets and moving violations as a personal favor for Dauphin. 1
Count II alleges that Serstock dismissed or wrongfully delayed numerous moving violations as a personal favor for Minneapolis businessman Stephen Wallack, to whom Serstock was also financially indebted. These tickets had been issued to Wallack's family and employees.
Count III alleges that Serstock dismissed, delayed or wrongfully manipulated numerous tickets for moving violations which occurred outside the City of Minneapolis, without informing or obtaining the permission of the city attorney of the city in which the offense occurred.
All three counts allege that Serstock knew these actions were in excess of his lawful authority simply because they were "flagrant violations" of the Code of Professional Responsibility and the Ethics Code of the Minneapolis City Attorney. In addition, count III alleges that Serstock knew his actions involving tickets issued outside Minneapolis exceeded his "statutory authority."
Serstock moved to dismiss the indictment on the grounds that the facts alleged did not constitute offenses and the language of the indictment lacked sufficient specificity. The trial court granted the motion on both grounds and dismissed the indictment.
1. Is this appeal taken from an appealable order?
2. Did the trial court err in concluding that the indictment failed to state an offense?
3. Is the language of the indictment sufficient under Minnesota law?
Minn.R.Crim.P. 28.04, subd. 1(1), provides that the State may appeal of right
from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense or an order dismissing a complaint pursuant to Minn.Stat. § 631.21 * * *.
Id. (emphasis added). An order dismissing an indictment does not fall within either of the exceptions to rule 28.04, subd. 1(1), and is therefore appealable of right by the State. Cf. State v. Grose, 387 N.W.2d 182 (Minn.Ct.App.1986).
Minn.Stat. § 609.43(2) (1984) prohibits a public officer or employee, while in his capacity as such officer or employee, from performing
an act which he knows is in excess of his lawful authority or which he knows he is forbidden by law to do in his official capacity; * * *.
Id. The State's theory is that the Code of Professional Responsibility and the Ethics Code of the Minneapolis City Attorney may be used to define the "lawful authority" which may not be "exceeded" by a public officer. The State therefore argues, both in its brief and at oral argument, that a violation of either of these codes of conduct by a Minneapolis city attorney is ipso facto a violation of section 609.43(2).
The statute does not specify any particular sources of "law" to which a court should look in determining whether a public employee exceeded his "lawful authority." Nor is there an abundance of Minnesota case law construing the statute. 2
In State v. Wedge, 24 Minn. 150 (1877), the Freeborn County Attorney was indicted for misbehavior and malfeasance in office under Gen.Stat. chap. 91, § 8 (1866). The indictment alleged that the county attorney aided the escape of a defendant in custody in Freeborn County by approving an unauthorized bail bond and directing the sheriff to release the defendant so that he could not be arrested on another complaint which was issued against him in another county. Upon the county attorney's demurrer to the indictment, the Minnesota Supreme Court stated:
How a defendant * * * shall be let to bail, is prescribed by the statute. It gives no authority in the matter to the county attorney. * * * The approval of the bond, and direction to the officer to release the prisoner, were beyond the [county attorney's] official authority.
Id. at 153 (emphasis added). Wedge therefore makes clear that a statute, even a non-penal statute, can be utilized in determining whether a public officer exceeded his "lawful authority." See also State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953) ().
Other jurisdictions have held that the lawful authority and official duties of a public officer may also arise "out of the very nature of the office" as determined by the courts. State v. Weleck, 10 N.J. 355, 366, 91 A.2d 751, 756-57 (1952); State v. Hess, 279 S.C. 14, 20, 301 S.E.2d 547, 550-51 (1983). Thus, the "lawful authority" of a public officer may also be determined by "obligations imposed by the common law * * * and assumed by [public officers] as a matter of law upon their entering public office." Weleck, 10 N.J. at 368, 91 A.2d at 758 (emphasis omitted) (quoting Driscoll v. Burlington Bristol Bridge Co., 8 N.J. 433, 474-76, 86 A.2d 201, 221 (1952)).
However, there is disagreement as to whether alleged violations of particular canons of ethical conduct by public officers can, without more, support a charge of official misconduct. In People v. La Carrubba, 46 N.Y.2d 658, 389 N.E.2d 799, 416 N.Y.S.2d 203 (1979), which involved the prosecution of a judge for official misconduct, the New York Court of Appeals held that an indictment which attempted to define the duties "inherent in the nature of [the judicial office]" solely by reference to the Code of Judicial Conduct was insufficient. Id.; see also State v. Perez, 464 So.2d 737, 741, 743-44 (La.1985) ().
In contrast, the court in People v. Weber, 133 Ill.App.3d 686, 88 Ill.Dec. 769, 479 N.E.2d 382 (1985), while dismissing an indictment for official misconduct against a county attorney for failure to state an offense, indicated that the charge would have been sufficient had it alleged a violation of the Code of Professional Responsibility. Id. 133 Ill.App.3d at 689, 88 Ill.Dec. at 771, 479 N.E.2d at 384.
Here, under the State's theory, any violation of the Code of Professional Responsibility by a public attorney would constitute action beyond his "lawful authority" and could subject the attorney to criminal penalties under section 609.43(2). We believe that such a result was not intended by the legislature because it would disrupt the supreme court's power to discipline attorneys and would distort the purpose of the Code of Professional Responsibility.
Under our constitution, the power to discipline attorneys rests entirely with the Minnesota Supreme Court. In re Daly, 291 Minn. 488, 490, 189 N.W.2d 176, 178-79 (1971); Rules on Lawyers Professional Responsibility, Rule 12 (1976). If a charge of official misconduct against a public attorney can be grounded solely in an alleged violation of the code, then the Attorney General and the county attorney would have the power to enforce the Code of Professional Responsibility. Certainly the legislature did not intend prosecutions under section 609.43(2) to so invade or intrude upon this exclusive "field of the judiciary." In re Disbarment of Ithamar Tracy, 197 Minn. 35, 43-44, 266 N.W. 88, 92 (1936).
Furthermore, pursuant to Minn.Stat. § 480.05 (1984), the Minnesota Supreme Court adopted the ABA Code of Professional Responsibility as the standard of professional conduct of attorneys in this state. See Order of Minnesota Supreme Court (August 4, 1970), reprinted in Minn. Rules of Court, at 772 (West 1985). The supreme court's order provided that
any attorney violating any of the disciplinary rules as embodied in the Code of Professional Responsibility shall be subject to discipline or disbarment in the manner provided by rules of this court.
Id. (emphasis added). Violations of the code were...
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