State v. Serstock

390 N.W.2d 399

Opinions

OPINION

PARKER, Judge.

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.

FACTS

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 Wal-laces 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.

ISSUES

1. Is this appeal taken from an appeal-able 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?

DISCUSSION

I

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).

II

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) (county attorney indicted for malfeasance in office for failing to enforce statute requiring county attorney to “use all reasonable * * * diligence for the detection, arrest, indictment and conviction of [criminal] offenders * * * ”).

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 insuffi cient. Id.; see also State v. Perez, 464 So.2d 737, 741, 743-44 (La.1985) (malfeasance charge alleging bad-faith prosecution without probable cause by district attorney dismissed as not charging a crime because “there is no provision of law that defines or limits the type of eases” which may be prosecuted, even though Code of Professional Responsibility prohibits prosecutor from instituting charges which are not supported by probable cause).

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 pen-. alties 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 therefore intended to subject an attorney to disciplinary proceedings, not criminal charges. There is no indication the legislature envisioned that an alleged violation of the disciplinary rules promulgated by the supreme court, without more, could form the basis of a criminal charge of official misconduct against a public attorney.

Moreover, the violation of particular disciplinary rules by a public attorney may be no more harmful to the public than a violation of the same rule by a private attorney. Yet under the State’s theory, a public attorney may be charged with official misconduct. For example, the public is not harmed to a greater extent when a public attorney violates disciplinary rule 1-103(A)³ compared to when a private attorney violates the same rule. The harm to the public appears equivalent, but the public attorney may be charged with official misconduct. The State’s theory, therefore, could pose serious equal protection problems.

Accordingly, we hold that an indictment which simply alleges a public attorney violated the Code of Professional Responsibility does not state an offense under section 609.43(2) because the code cannot be used to determine the “lawful authority” of a public attorney.

Similarly, but for more fundamental reasons, the allegation that Serstoek violated the Ethics Code of the Minneapolis City Attorney cannot, by itself, support a charge of official misconduct against a Minneapolis city attorney. The “lawful authority” specified in section 609.43(2) may, of course, refer to a city ordinance. It may even refer to a properly promulgated rule or regulation of an administrative agency because an agency exercising its rule-making power gives expression to legislative policy and thus performs a quasi-legislative function. See People v. Samel, 115 Ill.App.3d 905, 910, 71 Ill.Dec. 738, 742, 451 N.E.2d 892, 896 (1983).

The city’s “Ethics Code,” however, is not the product of any type of legislative function; it is simply the conditions of employment which are required of employees by their employer, the city. This “code” was drafted by the Minneapolis City Attorney to apply to all “full and part time classified or unclassified employees of the City of Minneapolis * * * appointed by the City Attorney.” It is essentially the employment manual of a single employer specifying the conduct that the employer requires of its employees. As such, it is not “law” in even a generic sense and therefore may not be used to determine whether a public attorney exceeded his “lawful authority” under section 609.43(2).

An examination of the conduct which would become criminal under the State’s theory demonstrates the impossibility of its position. Tbe Ethics Code of the Minneapolis City Attorney prohibits city attorneys from giving “rude” or “discriminatory treatment” to any person; they may not “lose impartiality” or “impede government efficiency.” Attorney employees cannot engage in any other employment without giving notice, nor “accept any gift.” They cannot engage in any “infamous, immoral or notoriously disgraceful conduct,” make public comment on any matter of “office policy” or lobby for or against any proposed legislation. We do not think the legislature intended such actions by public attorneys to be crimes under section 609.-43(2). In addition, we are unwilling, in this instance, to rely upon prosecutorial discretion as the sole safeguard between public attorneys and a multitude of dubious criminal charges. We hold that an allegation that a public attorney simply violated an “ethics code” promulgated by his employer does not state a criminal offense under section 609.43(2).⁴

Count III of the indictment, however, alleges more than that Serstoek exceeded his lawful authority simply by violating the above ethical codes; it also alleges that Serstoek, in violation of his statutory authority, dismissed, delayed or manipulated speeding tickets issued outside the City of Minneapolis.

Under Minn.Stat. § 488A.01, subd. 6 (1984), the municipal court of Hennepin County has jurisdiction over traffic offenses occurring in Hennepin County. Minn.Stat. § 488A.10, subd. 11, specifies who may prosecute such offenses in municipal court:

[T]he attorney of the municipality in which the violation is alleged, to have occurred has charge of the prosecution of all violations of the state laws, including violations which are gross misdemeanors, and municipal charter provisions, ordinances, rules and regulations triable in the municipal court and shall prepare complaints for the violations.

Id. (emphasis added). Under this statute, Serstoek possessed only the authority to prosecute traffic offenses which occurred inside the City of Minneapolis. By alleging that Serstoek interfered with prosecutions for moving violations which occurred outside Minneapolis, the indictment stated an offense, since it charged Serstoek with exceeding his statutory authority under section 488A.10, subd. 11, and hence his “lawful authority” under section 609.43(2). We therefore hold that the part of count III which alleges that Serstoek exceeded his lawful authority in dismissing tickets issued outside Minneapolis states an offense under section 609.43(2).

Ill

In light of our ruling in part II, we must determine whether the language of count III was sufficiently specific under Minnesota law.⁵ Serstoek argues that count III is insufficient because it does not inform him which tickets he allegedly manipulated, the precise number of tickets, or the jurisdictions in which the tickets were issued.

The essential function of an indictment is to apprise the defendant of the charge for which he is being tried. State v. Clark, 270 Minn. 538, 551, 134 N.W.2d 857, 866-67 (1965). An indictment must contain “a written statement of the essential facts constituting the offense charged.” Minn. R.Crim.P. 17.02, subd. 2. Finally, the act charged as the offense must be clearly and concisely set forth with sufficient certainty to enable the court to pronounce judgment. Minn.Stat. § 628.18 (1984).

Count III of the indictment alleges that Serstoek, in his capacity as Deputy City Attorney for the City of Minneapolis, dismissed or manipulated “numerous” tickets for moving violations issued outside the City of Minneapolis, without the consent of the city attorneys in those jurisdictions, and that such conduct exceeded Serstock’s “statutory authority.” Since the misconduct results from Serstock’s interference with prosecutions over which he had no authority under section 488A.10, subd. 11, the “essential facts” necessary to constitute the elements of the charged offense are present in count III. See State v. Oman, 265 Minn. 277, 281, 121 N.W.2d 616, 620 (1963).

It is not essential that the indictment state which jurisdictions the tickets were in or which “responsible city attorneys” were involved — those facts do not constitute elements of the offense. We agree that it would certainly have been preferable to allege the approximate number of “extra-jurisdictictional” tickets Serstoek allegedly manipulated. However, we do not think this lack of specificity has prejudiced him,⁶ since he can engage in pretrial discovery. He has already received the grand jury transcripts, exhibits, investigation reports and official documents.

While it is true that the bill of particulars has been abolished, the information supplied by a bill of particulars may be obtained by discovery under Minn.R.Crim.P. 9.01. See Minn.R.Crim.P. 17.02, subd. 4, comment. The availability of discovery to supplement the essential facts of an indictment was thus clearly intended by the Rules of Criminal Procedure. See also State v. Becker, 351 N.W.2d 923, 926-27 (Minn.1984) (defendant not prejudiced by complaint which failed to state specific time period in which multiple criminal acts occurred because defendant availed herself of discovery opportunities which revealed all acts involved).

We hold that the allegations contained in count III of the indictment sufficiently apprise Serstoek of the charge that he exceeded his statutory authority in violation of section 609.43(2).

DECISION

The order dismissing counts I and II of the indictment is affirmed. We also affirm the order dismissing count III to the extent count III purports to charge an offense under section 609.43(2) by alleging violations of the Code of Professional Responsibility and the Ethics Code of the Minneapolis City Attorney. However, that part of count III which alleges that Serstock exceeded his statutory authority does state an offense under section 609.43(2) and is technically sufficient. Serstock may be tried on count III under this theory.

Affirmed in part, reversed in part and remanded for trial.

Footnotes

1

. Dauphin was a former Minneapolis political activist who, at the time of the grand jury investigation, was serving time in federal prison for tax evasion.

2

. State v. Andersen, 370 N.W.2d 653 (Minn.Ct.App.1985), deals with the constitutional definiteness of section 609.43(2), not the sources of “law” to be utilized in determining whether a public officer exceeded his lawful authority.

3

. This rule states that "[a] lawyer possessing unprivileged knowledge of a violation [of a disciplinary rule by another attorney] shall report such knowledge to [the Lawyers Professional Responsibility Board]." Code of Professional Responsibility DR 1 — 103(A).

4

. The dissent argues that the indictment’s reference to the Code of Professional Responsibility and the City Attorney’s Ethics Code was simply surplus language and, apparently, that the indictment states a violation of the duties of a prosecutor under the common law. This argument was never presented to the trial court. Proper appellate procedure dictates that we address only those arguments and theories which were advanced in the trial court. Cf. State v. Mendoza, 297 N.W.2d 286, 288 (Minn.1980); Security Bank of Pine Island v. Holst, 298 Minn. 563, 215 N.W.2d 61 (1974) (case will be reviewed in accordance with theory in which it was pleaded and decided).

5

. Since we have held that Counts I and II did not state offenses, we need not rule on whether the language of those counts was technically sufficient under Minnesota law.

6

. A motion to dismiss an indictment may be made when the indictment "does not substantially comply with the requirements prescribed by law to the prejudice of the substantial rights of the defendant * * *." Minn.R.Crim.P. 17.06, subd. 2(2)(a).