State v. BergState v. Berg
- Reporters:
- , ,
- Before:
- Schroeder
The opinion of the court was delivered by
Schroeder, C.J.;
This is an appeal in a criminal action from a dismissal of charges against Pamela Berg (defendant- appellee). The appeal is brought by the associate counsel for the prosecution who was hired pursuant to
The facts disclose that on February 23, 1982, Pamela Berg went to the home of her ex-husband, Jerry L. Berg, to pick up her children for visitation. There was apparently some disagreement as to whether the children were to leave with their mother. This resulted in a violent altercation between Pamela and Jerry. Subsequently, both parties contacted law enforcement officers to report that he or she had been the victim of a battery by the other.
“That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.” (Emphasis added.)
On September 2, 1983, the district attorney’s office, after investigating and evaluating both allegations, moved to dismiss the complaint filed against Pamela Berg by Jerry Berg. The reasons for the dismissal were stated in the State’s motion for dismissal as follows:
“3. That in the exercise of good faith and sound discretion, the State’s attorney believes there is insufficient credible evidence to warrant the continued prosecution of the instant matter and therefore, continued prosecution of this matter would violate the ethical standards governing prosecutors;
“4. That the continued prosecution of this case would create an ethical conflict of interest for the District Attorney, his deputy and assistants in light of the continuing prosecution of [the case against Jerry Berg] and would constitute a usurpation of prosecutorial discretion.”
Both the district attorney and Pamela Berg’s counsel filed memoranda in support of the motion to dismiss. Jerry Berg’s retained counsel filed a memorandum opposing the motion. The hearing was conducted on October 12, 1983. After hearing extensive arguments from counsel, the court took the matter under advisement and issued a Memorandum Opinion on November 10, 1983. In this opinion, the court began by recognizing Mr. Berg’s retained counsel as an assistant to the prosecutor under
“Associate counsel strenuously objects to the dismissal of this case and in compliance withK.S.A. 19-717, the district attorney has filed his reasons for such dismissal in writing and associate counsel has filed his objections to dismissal in writing and all such reasons and objections have been fully considered by the Court.”
Jerry Rerg, through his retained counsel acting as “associate counsel for the prosecution,” appealed the dismissal of the charges against Pamela Rerg. The parties were ordered to show cause why this court had jurisdiction to hear the appeal in light of our decision in State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984).
The threshold issue in this case, then, is one of jurisdiction. Stated another way: When a district court dismisses a criminal complaint, does the complaining witness’s private counsel, retained pursuant to
In February 1984, while this appeal was pending, we decided the Rome case which involved a jurisdictional issue very similar to the one now before us. In determining whether Rome is dispositive of the present case, a detailed review of Rome is warranted.
Richard Rome, a practicing attorney, filed criminal charges of peijury against the sheriff and county attorney of Reno County in connection with their testimony at a hearing which resulted in the removal of Rome from his position as an Associate District Judge. The complaint was filed by Rome, and the trial court served notice to appear on each defendant. The defendants moved to quash the complaint and Rome opposed the motion. After a hearing, the trial court entered an order quashing the complaints. Although Rome did not attend the hearing, he presented his arguments in a written brief. Rome appealed the order quashing the complaint.
The issue before this court was whether a complaining witness had the right to take an appeal from an order entered by a district court dismissing a criminal complaint. In the course of the
per curiam
opinion, we noted there is no specific statute in Kansas which allows the complaining witness to appeal from the dismissal of a criminal case. Since the right to appeal is statutory,
This philosophy is incorporated into the Kansas Code of Criminal Procedure. See
After quoting at length from the American Bar Association Standards relating to the Prosecution Function, wherein it is stated the prosecution function should be performed by a public prosecutor and not a private party, we concluded, “It is thus clear that the national tradition, as well as the Kansas tradition, requires that the person representing the state in a criminal pro
Efforts by Mr. Berg’s attorney to distinguish Rome are without merit.
The distinction between a motion to dismiss and a motion to quash is one without a difference. Motions to quash as known in common law were abolished by
Also, there is no basis for the contention that there was no probable cause finding in
Rome.
After the complaint was filed in
Rome,
the court ordered that notice to appear be issued to each defendant. Such notice, by definition, is a “summons.” See
Another distinction asserted between Rome and the case at bar is the fact that a 19-717 assistant to the prosecutor was employed by the complaining witness in this case. Even so, we have concluded the rationale in Rome is equally applicable in this case and the appeal must be dismissed for lack of jurisdiction.
In arguing against this result, Mr. Berg’s attorney contends that by virtue of 19-717, he has assumed the role of a prosecutor. He points to language in
Rome
which refers to the 19-717 counsel as a “special prosecutor.” This term is used in
“ ‘Prosecuting attorney’ means any attorney who is authorized by law to appear for and on behalf of the state of Kansas in a criminal case, and includes the attorney general, an assistant attorney general, the county or district attorney, an assistant county or district attorney, and any special prosecutor whose appearance is approved by the court.” (Emphasis added.)
It is argued that since Mr. Berg’s attorney is a “special prosecutor” he has become a “prosecuting attorney” and thus may appeal the dismissal pursuant to
In our opinion an attorney hired by the complaining witness
to assist the prosecutor
pursuant to 19-717 is not a “special prose
In
State v. Wells,
54 Kan. 161, the Supreme Court held that although it was not error for the lower court to permit private counsel to assist the county attorney, the entire prosecution was to remain under the supervision and control of the county attorney.
In discussing 19-717 in the Rome opinion, this court stated:
“This statute does not give to the associate counsel the right to take an appeal to an appellate court from an order dismissing the case. . . .
“. . . Although the complaining witness does have the right to employ private counsel to assist the county attorney, the ultimate prosecution of the case remains at all times in the hands of the public prosecutor.” 234 Kan. at 949.
The drastic difference in roles between the “public” prosecutor and the “private” prosecutor was observed in Note, Private Prosecution— The Entrenched Anomaly, 50 N.C.L. Rev. 1171, 1173 (1972):
“From his sole function as procured advocate for a prosecution, the duties of the public prosecutor have taken new dimensions. He is not an advocate in the ordinary sense of the word, but is the people’s representative, and his primary duty is not to convict but to see that justice is done. The prosecutor is an officer of the state who should have no private .interest in the prosecution and who is charged with seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain. It is his duty toshow the whole transaction as it was, regardless of whether it tends to establish a defendant’s guilt or innocence.
“Conversely, a privately retained attorney owes his client individual allegiance, and once employed he must not act for an interest even slightly adverse to that of his client in the same general matter. Therefore, in view of the ethical and judicial restrictions imposed on the public prosecutor and the generally recognized loyalties of the private advocate, ‘private prosecutor’ is a contradiction in terms. The high standard of impartiality demanded .of a prosecutor realistically cannot be expected of the private advocate.”
It is firmly established in this state that the relationship between a lawyer and his client is one of agency. Bucher & Willis Consulting Engineers v. Smith, 7 Kan. App. 2d 467, 643 P.2d 1156 (1982). An attorney who is hired by a complaining witness must act in the interest of his client which may not be in the interest of the general public. Accordingly, we conclude that the Rome case is dispositive of the case at bar. The addition of an attorney, hired by the complaining witness under 19-717, does not distinguish this case from the rationale of Rome. The person representing the State in a criminal proceeding must be a “law-trained, independent public prosecutor rather than a vengeful persecutor.” Rome, 234 Kan. at 951. (Emphasis added.)
There is no merit to the argument made by associate counsel that without the right to appeal the dismissal,
Supreme Court Rule 7.07(b) (232 Kan. cxviii) provides:
“(b) FRIVOLOUS APPEALS. If the court finds that an appeal has been taken frivolously, or only for the purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel. The mandate shall then include a statement of any such assessment, and execution may issue thereon as for any other judgment, or in an original case the clerk of the appellate courts may cause an execution to issue.” (Emphasis added.)
In this case the district attorney was not an “appellee,” he merely filed an amicus brief. While the rule (7.07[b]) speaks to fees being awarded to an “appellee,” we think the distinction in the situation here involved is irrelevant. The district attorney was obligated to submit a brief in support of the trial court’s dismissal. The associate counsel was claiming to be the prosecutor acting on behalf of the State. Therefore, the district attorney — the actual representative of the State — had to be heard.
The dismissal of this case by the trial judge and the appeal taken by counsel for Mr. Berg were prior to the decision in State ex rel. Rome v. Fountain, 234 Kan. 943. Therefore, counsel did not have the benefit of the Supreme Court’s decision in Rome. Had this appeal been taken after the Rome decision it would have been frivolous, but under the circumstances we cannot say the appeal was frivolous when it was taken. The request for reasonable attorney fees and expenses of the district attorney is denied.
The appeal is dismissed.