*1 886 juror more the City 522, the seems Hilger, of Paul v. 300 Minn. examination elec- counsel’s tactical 220 (juror of defense N.W.2d 350
result
had seen store
objection
of a deni-
no
detective
make
who made arrest at a bar
tion—to
—than
right
Hanson,
the assistance of
frequented);
the
counsel.
al of
v.
286 Minn.
317,
(1970) (juror
176
607
a
N.W.2d
cousin
say
not to
that we approve
is
relationship
of sheriff
had
business
judge
juror
discussions
county
in
attorney). Nothing
record
with
of counsel.
examination of
absence
a
any
of the interview reveals
for bias
juror
should
not
on the
lieving
that there was
actual bias on
presence
but in the
of counsel
record
juror’s part
justify grant-
which would
the defendant.
defendant characteriz
a
the motion for mistrial. The defend-
depriva
of constitutional
es
juror
ant does
contend that
not
right
as a
denial of his
right to
biased or that he was denied his
every
stage
critical
and a denial
trial
jury. Accordingly,
impartial
tried
an
if
right
his
of coun
to effective assistance
presence
and counsel at
of defendant
have, however,
although
We
sel.
held that
juror
the trial
court’s examination
present during
the defendant should be
waived,
prejudice
was not
the error did not
with
on-the-record in-chambers discussion
a
the defendant.
ground
a new
juror, his absence is not
Finally,
agree
ap-
we
with the court of
being
prejudiced by
if he
not
trial
was not
peals that
the evidence was sufficient to
531,
State,
present.
v.
298 Minn.
Kelsey
judgment
of conviction.
(1974).
court’s interview require not a new
presence of counsel did underlying 718. The Hoffman, at
trial. judge’s not ex question is whether or Petitioners, BUSH, n parteinterview juror resulted in with the v. right defendant’s denial of the PERPICH, Rudy Honorable Governor of impartial jury. tried Lynn the State of Minnesota and C. The trial court characterized Commissioner, In Re: acquaintance with the witness as juror’s Proceeding R. to Remove Kathleen assur accepted juror’s “nominal” and Office, Respondents. Morris from bearing no on that it have her ance would general Petitioner, MORRIS, evaluation disposition of a motion rule v. jury bias is matter within mistrial PERPICH, Rudy Governor of Vance, court’s discretion. State trial State of Minnesota (Minn.1977). That a N.W.2d Commissioner, In Re: challenge cannot be exercised peremptory Proceeding to Remove R. Kathleen ground not jury has been sworn is after Office, Respondents. Morris from Minn, Kelsey, 298 for mistrial.. showing at 237. Absent 214 N.W.2d juror failure to dismiss a prejudice, actual Supreme Court of Minnesota. or to a mistrial cause trial. See State v. new required Stuffle (Minn.1983)(ju bean, 329 N.W.2d closely corporation employed by ror family); part by victim’s large
owned *2 Martin, Edina,
James T. for Deputy Sher- iffs. Malecki,
Gislason Dosland Hunter Minne- tonka, Wilker, Social Worker. Barta,
Loren Prague, M. New for Tietz. Stephen Doyle, P. Minneapolis, for Mor- ris. III, Humphrey, Gen.,
Hubert H. Atty. Tunheim, Atty. Gen., John R. Asst. Paul, Perpich and Olson. Mankato,
missioner.
AMDAHL, Chief Justice. Morris,
Petitioners R. Kathleen Scott County Attorney; Bush, Sheriffs; County Deputy Doug- Tietz, peti- las Sheriff filed a tion for writ of to restrain the Ramsey County District Court from enforc- its order of denying their quash subpoenas motion to re- issued to quire their attendance at the Scott give prehearing deposition Courthouse to petition was filed in the Appeals, banc, sitting petition- fore this court en application ers’ for accelerated review of granted. By the matter was order of 16,1985 petition, stating we denied the opinion would follow.
On March 1985 a on behalf of Buchan, Cindy former defendant crimi- proceedings nal initiated and later dis- missed was filed with the Hon- Rudy Perpich, orable Governor Minnesota, seeking the removal of Mor- pursuant ris from office alleging county attorney’s malfeasance in office. Perpich Petitioners concede that
On March providing empowered 85-10 Commissioner is issued Executive Order authorize establishment issuance testi hearing and take any hearing pursuant conduct County Attorney, and (1984), but opportuni- provide the narrow issue of whether *3 in his or her ty to heard defense.” given to the to compel pre- Judge hearing deposition While we District, Court, Tenth Judicial was District do not address the of whether appointed pursuant governed these proceedings by are the Min (1984) Special Commissioner “to take and Procedure, nesota Rules of Civil we do report pertinent all evidence to authority implied conclude that such there is to re- determine whether power from the delegated ultimate removal County move At- Kathleen Morris by Legis to the of this state torney.” lature. Gernes, Attorneys Winona Julius The role of the Commission Attorney, Irene Scott were named to and er, only by defined not Executive Order assist Commissioner and by 351.04, 85-10 but also Minn.Stat. is to appoint Attorney was directed to General gather testimony report and present and evidence organize counsel against the official whose removal Commission;” Gage, to the a Man- sought. Contemplated by been that re appointed posi- this Attorney, kato to procedural sponsibility are the mechanisms by tion General. accomplish a full necessary investigation to Order directed the Com- Executive inquiry. matters relevant to the To the pro- and implement mission “to determine testimony extent the of individuals whose to this matter and con- appropriate cedures knowledge voluntarily cannot is relevant empowered the sistent law” and Com- obtained, must be subpoenas compel “to issue to missioner testimony available to insure testimony presentation of other and against subject and on behalf official concerning this evidence matter.” may goal in furtherance of obtained Gage Mr. encountered difficulties at- complete investigation. a full and witnesses, potential tempting to interview However, several matters called to petitioned the April and on Com- during our attention the course of these establishing proce- mission for an order First, proceedings require comment. dure the issuance of to com- appointed role of to assist the Com counsel pel testimony. by or- Commissioner by mission as defined the Executive Order 8, 1985, der dated authorized the State present is “to organize and evidence.” Minnesota, represented Mr. necessarily implies Such a neutral duty subpoe- to and R. Kathleen Morris “obtain presentation of all evidence applica- proceedings by nas for in these use official, the disclo of the District Court for tion to the Clerk peti to sure of found evidence County.” Ramsey role, is, tion for Counsel’s in that removal. Thereafter, petitioners manner, from distinguishable that of Ramsey moved the et al. attorney. prosecuting quashing an order sub- District Court we are that a Secondly, while mindful poenas require their attendance issued public removal of official at the Courthouse used, infrequently we in- the Governor is mo- prehearing deposition testimony. The Legislative branches vite Executive petitioners have here was denied and to es- government to evaluate need sought court from to restrain the district comprehensive enforcing tablish more definitive that order of report- procedures investigative “chance”—a for the chance to evidence. minimizing the necessi- ing process thereby “opportunity,” “chance,” “option” or development such ty in her own behalf rests with the appropriate to procedures missioner of charged officer. In neither the statute nor pro- case. Parties to these each individual order is authority extended to the thereby be ceedings would able to immedi- Commission or the Governor to rights ately responsibili- ascertain the such penalty under contempt to the investigatory ties attendant and re- for failure to do so. process. porting I would the writ. Finally, concern expressed by sever- petitioners al of the about possible con- COYNE, (dissenting). flict existing juvenile protec- court dissent of Justice tive orders and compelling orders testimo- *4 ny by petitioners. these The record re- WAHL, Justice (dissenting).
flects that Commissioner has I in the dissent of anticipated this concern and has estab- procedures designed lished to balance the
competing interests.
Petition for writ of denied.
KELLEY, COYNE, JJ„ WAHL and dis-
sent.
KELLEY, Justice, (dissenting). Because I am Charlotte KESSEL, of the view that neither Respondents, et Minn.Stat. nor Executive compelled Order 85-10 authorizes the testi- KESSEL, Bernard the Bernard Kessel Attorney under inves- Trust, etc., al., Appellants. tigation, respectfully dissent. provides give copy Governor “shall to the officer a Appeals of Minnesota. charges against (the official) him an opportunity to be heard in his de- (Emphasis supplied.) To me an fense.” opportunity clearly implies to be heard charged option officer has
testimony or not he or she chooses.
Nothing in remotely the statute indicates
that the Governor or the Commissioner has
any authority under the charged officer to
proceedings before the Commission or in
any pre-proceeding depositions.
Moreover, Executive Order 85-10 estab-
lishes Commission “to conduct a and take County Attorney, provide
County Attorney opportunity
heard in his or her defense.”
As used in both the statute and the Exec- “opportunity” obviously
utive Order means