Walker v. Schneider

Decision Date12 November 1991
Docket NumberNo. 910107,910107
Citation477 N.W.2d 167
PartiesChrist WALKER, Petitioner and Appellant, v. The Honorable Thomas J. SCHNEIDER, Judge of the County Court of Burleigh County by assignment, Respondent and Appellee. Civ.
CourtNorth Dakota Supreme Court

Thomas M. Tuntland (argued), Mandan, for petitioner and appellant.

Paul C. Seado (argued), Asst. States Atty., Bismarck, for respondent and appellee.

MESCHKE, Justice.

Christ Walker appeals from the denial of his petition for a writ of scire facias, seeking to prohibit the State from proceeding against him on a second criminal complaint for the same offense after the first one had been dismissed for lack of probable cause. We remand for entry of an order consistent with this opinion.

The Burleigh County State's Attorney charged Walker under NDCC 12.1-20-03(1)(e) with the class B felony of gross sexual imposition. 1 After a preliminary hearing, the Burleigh County Court ruled that there was probable cause to believe that Walker had committed the crime. Walker was bound over to district court for trial and a criminal information was filed.

Walker then petitioned the district court for a writ of certiorari, asserting that the county court had exceeded its jurisdiction because the evidence presented at the preliminary hearing did not establish probable cause to believe that he had committed the crime. The district court agreed, concluding that the evidence did not establish probable cause to believe that the alleged victim was incapable of understanding the nature of the sexual conduct. Judgment granting the writ of certiorari was entered on October 11, 1990, and judgment was entered on October 17, 1990, dismissing the criminal information against Walker.

Meanwhile, on October 10, 1990, the State issued a second criminal complaint, charging Walker with gross sexual imposition for the same act alleged in the first complaint. Walker moved to dismiss that complaint, contending that the question of probable cause had been finally adjudicated, that the State had not produced any additional evidence, and that continuation of the prosecution violated his due process rights. The Burleigh County Court, the Honorable Thomas J. Schneider on assignment, denied Walker's motion to dismiss.

Walker then filed a "petition for scire facias" in district court against Judge Schneider to show cause why the judgments granting the writ of certiorari and dismissing the first criminal action against him should not be enforced to prohibit the State from proceeding on the second complaint. The district court denied the petition for writ of scire facias, concluding that NDCC ch. 32-13 "replaced the remedies formerly available under such a writ" and that the relief sought by Walker was not available under NDCC 32-13-03. 2 The district court said:

I believe the ultimate issue raised is a double jeopardy argument. It seems clear to the Court that there is neither a statutory nor a constitutional issue present. The rules clearly allow the bringing of another action by the state when a complaint is dismissed before a ruling is made on the merits.

Walker moved for reconsideration. The district court again denied Walker's petition, concluding that the prior judgments did not preclude the State from charging Walker with the same offense. Walker appealed.

After Walker appealed, Judge Schneider held a preliminary hearing on the second complaint and found that the evidence still failed to establish probable cause to believe that the victim of the alleged gross sexual imposition suffered from a mental disease or defect which rendered her incapable of understanding the nature of her conduct. Judge Schneider ordered that the second complaint be dismissed and that Walker be discharged. Because the second complaint has been dismissed, we consider whether this appeal is moot.

I MOOTNESS

When questions raised in an appeal become moot, we generally dismiss the appeal. Backes v. Byron, 443 N.W.2d 621 (N.D.1989). An appeal is moot when an appellate court is unable to render effective relief due to the lapse of time or the occurrence of related events. Pelkey v. City of Fargo, 453 N.W.2d 801 (N.D.1990). However, we will not dismiss an appeal as moot where the controversy is one of great public interest and involves the power of public officials, or where the question is capable of repetition, yet evading review. North Dakota Council of School Administrators v. Sinner, 458 N.W.2d 280 (N.D.1990). "Public interest" means more than the interest of a particular locality; it means something that affects the legal rights or liabilities of the public at large. Pelkey v. City of Fargo; Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D.1986). Under these criteria, we conclude that Walker's appeal is not moot.

Although the second complaint against Walker has been dismissed and apparently no charges are currently pending against him, the State asserts that, under NDRCrimP 5.1, it could issue a new complaint against him for the same crime. Walker's appeal questions the scope of a public prosecutor's power to charge a person with the same crime after the dismissal of a prior complaint for lack of probable cause. The possibility that Walker, or others, might face repeated criminal charges in like circumstances demonstrates a significant public interest in resolving this question. Under our rules of criminal procedure, that possibility is not merely localized but has statewide importance. This question affects the scope of a prosecutor's authority to enforce the laws of this state, and the legal rights of citizens at large. State v. Liberty National Bank and Trust Co., 427 N.W.2d 307 (N.D.1988). Moreover, the time constraints for a preliminary hearing coupled with the State's belief that it may issue a new complaint instead of seeking review of a magistrate's adverse ruling on probable cause makes this question capable of repetition in a manner that will evade review. Liberty National Bank. Therefore, Walker's appeal is not moot.

II RIGHT TO RELIEF

Relying on State ex rel. Sathre v. Roberts, 67 N.D. 92, 269 N.W. 913 (1936), Walker argues that the prior district court judgments granting the writ of certiorari and dismissing the criminal information are enforceable by a writ of scire facias and that NDCC ch. 32-13 did not replace the remedies available by that writ. 3 The State admits that there is a public policy favoring finality of judgments and acknowledges that a "writ of scire facias may be a viable means by which to enforce such judgments." We are doubtful that a writ of scire facias is the appropriate writ for this purpose, but we do not regard the label as determinative of the right to relief.

Here, Walker sought to enforce the prior judgments and to prohibit the State from prosecuting him for the same offense. Although the district court ruled that the relief sought by Walker was not available under NDCC 32-13-03, the court concluded that "[t]he rules clearly allow the bringing of another action by the state when a complaint is dismissed before a ruling is made on the merits" and that the prior judgments did not preclude the State from recharging the offense. Regardless of whether Walker's petition sought to enforce the prior judgments or to prohibit subsequent prosecutions, the district court's decision construed NDRCrimP 5.1 to command the denial of his request to prohibit the State from again prosecuting him for the same offense.

NDCC ch. 32-35-01 says that a writ of prohibition "arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." A writ of prohibition is an extraordinary remedy to prevent an inferior tribunal, board, or body from acting beyond its jurisdiction when there is not a plain, speedy and adequate remedy in the ordinary course of law. NDCC 32-35-02; Old Broadway Corp. v. Backes, 450 N.W.2d 734 (N.D.1990). We have allowed a writ of prohibition to attack the constitutionality of a statute under which a criminal prosecution was maintained [State v. Hanson, 252 N.W.2d 872 (N.D.1977) ], and in an original proceeding to prevent contempt proceedings. Schneider v. Ewing, 310 N.W.2d 581 (N.D.1981). On the other hand, we have upheld refusals to allow a writ of prohibition in a criminal prosecution where the defendant could appeal the conviction. Schneider v. Seaworth, 376 N.W.2d 49 (N.D.1985); Davis v. O'Keefe, 283 N.W.2d 73 (N.D.1979). Here, Walker faces repetitious filings of a criminal complaint without the prosecution seeking district court review of an adverse determination of probable cause and without a conviction from which he could appeal. Walker has no adequate remedy by appeal.

We therefore treat the district court's order as a denial of a writ of prohibition. A writ of prohibition is a special proceeding. NDCC 32-32-01. An order denying relief in a special proceeding is appealable. State v. Morrissey, 295 N.W.2d 307 (N.D.1980). We conclude that the question raised by Walker's petition is properly before us. 4

III DUE PROCESS

Walker contends that the State cannot issue a new complaint against him after an adverse determination on probable cause unless it discovers new or additional evidence that was not readily available at the time of the first preliminary hearing. He argues that the review of a magistrate's decision in district court authorized by NDRCrimP 5.1(b) and an appeal from the district court's decision are in lieu of the unfettered right of the State to file a new complaint. Relying on the explanatory note to NDRCrimP 5.1, the State responds that it has two options when a magistrate dismisses a complaint for lack of probable cause: (1) seek district court review of the magistrate's decision, or (2) issue a new complaint.

NDRCrimP 5.1(b) says:

Discharge of the Defendant. After hearing the evidence on behalf of the respective par...

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