Olsen v. KoppyOlsen v. Koppy
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[¶ 1] Walter S. Olsen III appeals from an order dismissing his request for appointment of a private attorney to initiate criminal prosecutions against his wife and others. We conclude the order is not appealable. We treat Olsen’s attempted appeal as a request for a supervisory writ, which we decline to issue.
[¶ 2] In August 1998, Olsen, who was then incarcerated in the North Dakota State Penitentiary, asked the trial court to appoint a private attorney under
[¶ 3] Koppy responded with his reasons for declining to initiate the prosecutions:
1. [Olsen] is requesting prosecution for Adultery and Unlawful Cohabitation, both Class B misdemeanors. This office is at present prosecuting [Olsen’s wife] for a Class C Felony, Assault on a Peace Officer.... In light of a bulging case load and limited resources, coupled with the existing prosecution against [Olsen’s wife], prosecution of these misdemeanors is less than prudent.
2. There is no indication that [Olsen] has ever bothered to report these two “heinous” crimes to any law enforcement agency. There is no indication of any investigation whatsoever. [Olsen], a multiple felon, merely makes bald assertions, with claims that co-felons can corroborate the bald assertions.
3. Unlawful cohabitation (NDCC 12.1-20-10) requires proof that the defendants hold themselves out as married. [Olsen’s] bald un-investigated statements do not produce such an allegation. Thus, an essential element is missing from the start. One is reluctant to waste limited police resources on such a report.
4. [Olsen’s] marriage to the proposed accused, occurred approximately a week in advance of the Petition for Revoca *764 tion hearing that is the source of [Olsen’s] current incarceration. The proposed accused testified on behalf of [Olsen] at that hearing. This is certainly an astonishing coincidence. Now, even though the undersigned could be jumping to conclusions as to the motivation for this once blessed union now gone sour, the undersigned is nevertheless confident that a jury would jump to the same conclusion, making such a trial an exercise in futility.
5. Further to the subject of futility and coincidence, the proximity in time between the necessity of pursuing this injustice and the revocation of [Olsen’s] parole, is also astonishingly close.
6. In much blunter terms, [Olsen] views the proposed accused as first, unable to save him from a revocation of probation. Second, he views her as the cause of his subsequent parole revocation. Then, having the luxury of leisure time afforded by prison life, [Olsen] has plenty of opportunity to prosecute his private agendas. Now, he is calling upon the court to ratify his personal vendetta. [Koppy] asks the court not to permit such ratification.
[¶ 4] The trial court dismissed Olsen’s request, concluding “[w]hile the state’s attorney’s response is unnecessarily sarcastic, it does set out a reasonable and valid basis on which he has exercised [h]is prosecutorial discretion in this matter.” The court denied Olsen’s request for reconsideration, and he appealed from the order dismissing his request.
[¶ 5] Olsen argues Koppy improperly exercised his prosecutorial discretion in refusing to initiate the prosecutions. Olsen argues
[¶ 6] Although not raised by either party, we initially consider the procedural posture for our review of this case. See Kouba v. FEBCO, Inc., 1998 ND 171, ¶ 7, 583 N.W.2d 810 (holding right to appeal is jurisdictional and may be considered sua sponte).
[¶ 7] Under
[¶ 8] Olsen has attempted to invoke our appellate jurisdiction. Under
[¶ 9] Section 28-27-01, N.D.C.C., authorizes appeals from judgments or orders in civil actions or in special proceedings.
See
N.D.C.C. ch. 32-01 (defining civil action as any action other than criminal action and defining criminal action as prosecution by state against person charged with public offense);
[¶ 10] Section 28-27-02, N.D.C.C., authorizes appeals from enumerated orders, and we consider the appealability of the order refusing to appoint a private attorney under
If it shall appear, by affidavit or otherwise, to the satisfaction of a judge of the district court of the judicial district in which the county is situated . . . that the state‘s attorney has refused or neglected to perform any of the duties prescribed in subsections 2 through 6 ofsection 11-16-01 . . . the judge shall:
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2. Appoint an attorney to take charge of such prosecution or proceeding and fix the attorney’s fee therefor by an order entered upon the minutes of the court, and the attorney so appointed shall be vested with the powers of the state’s attorney for the purposes of that action, but for no other purpose, and shall be the only person authorized to proceed in such action. The fee specified in the order shall be allowed by the board of county commissioners and, if so ordered by the court, the amount of such fee shall be deducted from the salary of the state’s attorney.
[¶ 11] In
State ex rel. Clyde v. Lauder,
11 N.D. 136, 90 N.W. 564 (1902), this Court considered an issue involving the appointment of a private attorney under the predecessor to
[¶ 12] This Court annulled the trial court’s order, concluding the court exceeded its jurisdiction in issuing an ex parte order permitting the deduction:
The right to appoint [a private attorney] and to fix his compensation we do not question under the facts in the record to which we have referred, but the naked right to do this furnishes no excuse for an ex parte order, or any order, deducting $100 from the [elected state’s attorney’s] official salary. No statute permits an appeal from the particular order complained of, and for the substantial injury which necessarily results from such an order, the law, in its ordinary course of administration, affords no plain, speedy, or adequate remedy. In such cases the writ of certio- *766 rari may be invoked where inferior courts or tribunals have exceeded their jurisdiction.
Lauder, 11 N.D. at 148, 90 N.W. at 570.
[¶ 13] This Court held:
[T]he order depleting the salary of the state’s attorney is not an appealable order, and that for the injury necessarily resulting from such an order the law in regular course does not afford a remedy which is plain, speedy, and adequate. Hence the writ of certiorari is the proper remedy to bring up such order for review.
Lauder, 11 N.D. at 137, 90 N.W. at 565 (Syllabus by the Court).
[¶ 14] In State ex rel. Ilvedson v. District Court, 70 N.D. 17, 36, 291 N.W. 620, 630 (1940), this Court issued a supervisory writ vacating a trial court’s ex parte order appointing a private attorney to institute proceedings against county officials to recover money. After discussing the trial court’s constitutional authority to effectively remove an elected state’s attorney and appoint a private attorney to institute the action, this Court concluded the trial court lacked authority to issue an ex parte order:
Assuming, without deciding, that the Legislature may provide for a partial or limited removal of the state’s attorney,-removal in so far as the institution and prosecution of one particular action is concerned,-clearly it may not authorize such removal except after notice and hearing. Hence, if the Legislature intended to confer upon the District Judge power to determine whether the state’s attorney has refused or neglected to perform his duty, and to order that the state’s attorney be deprived of all power and duty as such in connection with the institution and prosecution of a certain action, all without notice to the state’s attorney, or opportunity to be heard on the question whether he has refused or neglected to perform his duty, then the statute is manifestly unconstitutional. But, it will not be presumed that the Legislature had any such intention, unless it has clearly expressed such intention in the law itself. The presumption is that the Legislature intended that the removal proceeding which it prescribed should be in accordance with the principle of due process of law.
Ilvedson, 70 N.D. at 31, 291 N.W. at 627.
[¶ 15] Under both
Lauder
and
Ilvedson,
trial courts’ orders issued under the predecessor to
[¶ 16] Although Olsen’s appeal is not authorized by statute, we consider his attempted appeal as a request for a supervisory writ. See, e.g., Mitchell v. Sanborn, 536 N.W.2d 678, 682-83 (N.D.1995).
*767 [¶ 17] Our power to issue supervisory writs is discretionary and cannot be invoked as a matter of right. Sanborn, 536 N.W.2d at 682-83; B.H. v. K.D., 506 N.W.2d 368, 372-73 (N.D.1993); City of Fargo v. Dawson, 466 N.W.2d 584, 585 (N.D.1991); Odden v. O’Keefe, 450 N.W.2d 707, 708 (N.D.1990). We exercise our supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice where no adequate alternative remedies exist. Sanborn, 536 N.W.2d at 682-83; B.H., 506 N.W.2d at 372-73; D awson, 466 N.W.2d at 585; Odden, 450 N.W.2d at 708. Our jurisdiction to issue supervisory writs is, in a sense, both appellate and original in character, because supervisory proceedings are independent in nature with process directed to a trial court, but our decision reviews the trial court’s judicial act. See Burke, 32 N.D.L.Rev. at 199-201 (comparing original supervisory jurisdiction and original jurisdiction to issue prerogative writ in publici juris cases).
[¶ 18]
[¶ 19] In Lauder, 11 N.D. at 145-46, 90 N.W. at 569, we recognized a trial court’s decision to appoint a private attorney in criminal proceedings is discretionary. See also State v. Stepp, 45 N.D. 516, 521, 178 N.W. 951, 953 (1920). Our analysis of this ease effectively involves three tiers of discretion: the state’s attorney’s discretion to initiate a criminal prosecution; the trial court’s discretion to appoint a private attorney in a criminal proceeding; and our discretion to issue a supervisory writ.
[¶ 20] To the extent Koppy argues a state’s attorney has discretion not to prosecute one kind of crime, we reject his argument. A prosecutor may not effectively repeal a law by categorically refusing to prosecute one kind of crime. See Voss, 11 N.D. at 546-47, 90 N.W. at 18-19. However, Koppy also cites limited prosecutory and investigatory resources, a bulging caseload, the dubious nature of Olsen’s marriage, the reasonable probability of not obtaining a conviction, and Olsen’s failure to report the events to any law enforcement agency. Those reasons support Koppy’s discretionary decision not to initiate these prosecutions and the trial court’s decision not to appoint a private attorney to initiate the prosecutions.
[¶ 21] We exercise our supervisory jurisdiction only rarely and cautiously, to rectify errors or to prevent injustice. See, e.g., Sanborn, 536 N.W.2d at 682-83. On this record, we decline to exercise our supervisory jurisdiction and issue a supervisory writ. 4
*768 [¶ 22] VANDE WALLE, C.J., and MARING, KAPSNER and SANDSTROM, JJ., concur.
Notes
.
Adultery.
1. A married person is guilty of a class A misdemeanor if he or she engages in a sexual act with another person who is not his or her spouse.
2. No prosecution shall be instituted under this section except on the complaint of the spouse of the alleged offender, and the prosecution shall not be commenced later than one year from commission of the offense.
3. The court shall grant immunity from prosecution under this section to a person subject to prosecution under this section who, as part of a divorce, annulment, or separation proceeding, provides information regarding sexual acts with another person.
.
Unlawful cohabitation. A person is guilty of a class B misdemeanor if he or she lives openly and notoriously with a person of the opposite sex as a married couple without being married to the other person.
. R.C. 1899, § 5626 provided:
What orders reviewable. The following orders when made by the court may be carried to the supreme court:
1. An order affecting a substantial right made in any action when such order in effect determines the action and prevents a judgment from which an appeal might be taken.
2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.
3. When an order grants, refuses, continues or modifies a provisional remedy or grants, refuses, modifies or dissolves an injunction; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer.
4. When it involves the merits of an action or some part thereof; when it orders judgment on application, therefor on account of the frivolousness of a demurrer, answer or reply; or strikes off such demurrer, answer or reply on account of the frivolousness thereof.
5. Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.
. This case also does not satisfy the criteria for our exercise of original jurisdiction to issue a prerogative writ. As the name connotes, our original jurisdiction contemplates proceedings initiated in this Court and exists only in cases in which the matter to be litigated is publici juris, wherein the sovereignty of the state, the franchises or prerogatives of the state, or the liberty of its people are directly affected. See State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 384 (N.D.1992); State ex rel. Spaeth v. Olson ex rel. Sinner, 359 N.W.2d 876, 877-78 (N.D.1985); State ex rel. Peterson v. Olson, 307 N.W.2d 528, 531 (N.D.1981). See generally Burke, 32 N.D.L.Rev. at 200-03. Our authority to exercise original jurisdiction is a discretionary power which cannot be invoked as a matter of right, and we decide on an ad hoc basis whether to exercise our original jurisdiction. Sinner, 491 N.W.2d at 384; Spaeth, 359 N.W.2d at 878; Olson, 307 N.W.2d at 531. We do not exercise original jurisdiction to vindicate private rights, regardless of their importance; rather, the rights of the public must be directly affected. Sinner, 491 N.W.2d at 384; Spaeth, 359 N.W.2d at 878; Olson, 307 N.W.2d at 531. To warrant our exercise of original *768 jurisdiction, the interests of the state must not be merely incidental, but must be of primary importance and the public, i.e., the community at large, must have an interest or right which may be affected. Sinner, 491 N.W.2d at 384; Spaeth, 359 N.W.2d at 878; Olson, 307 N.W.2d at 531.