257 NW.2d, 361
State of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant,
James C. OTIS, Esquire, Respondent.
State of Minnesota ex rel. J. J. WILD, M. D., Ph. D., Appellant,
v. Oscar R KNUTSON, Esq., et al., Respondents.
Nos. 4689S, 46882.
Supreme Court of Minnesota.
Aug. 12, 1977.
Private citizen filed complaint
against defendants alleging violation of criminal laws against conspiracy
to commit a crime, corruptly influencing a legislator and violation
of criminal law against perjury. The District Court, Hennepin and
Ramsey Counties, Allen Oleisky, and Sidney P. Abramson, JJ., dismissed
complaints, and private citizen appealed. The Supreme Court Sheran,
C. J., hold that private citizen could not commence and maintain
private prosecution for alleged violations of criminal law.
1. Indictment and Information
Private citizen may not commence and maintain private prosecutions
for alleged violation of the criminal law.
Appellate judges must decide for themselves whether recusal be required
in case in which party claims bias.
In action wherein private citizen sought to commence and maintain
private prosecutions for alleged violations of criminal law, judges
determined that affidavit of prejudice filed by plaintiff against
them it was without justification. M.S.A. §§ 609.176,
subd. 2, 609.426, 609.48.
4. Grand Jury
While citizen does not have a right to appear before a grand jury
and persuade it to indict, he is free to attempt to get grand jury
to take action and grand jury can permit aggrieved citizen to appear
as witness for this pun~e. Rules Crim.Pros.; - Rules 2.02, 18.01,
18.03, 18.04, 27A M.S.A.; M.S.A. § 388.12.
5. Attorney General, District
and Prosecuting Attorney and Mandamus
Remedies available to an aggrieved citizen when prosecutor refuses
to commence a prosecution include petitioning district court to
appoint special prosecutor, appealing to the governor who then might
order Attorney General to commence prosecution or seeking mandamus.
Rules Crim.Pros.; - rules 2.02, 18.01, 18.03, 18.04, 27A M.S.A.
M.S.A. § 8.01, 388.12.
Problem with mandamus from standpoint of aggrieved citizen seeking
prosecutor to commence a prosecution is that decision whether to
initiate a particular prosecution is discretionary and therefore
normally beyond The scope of mandamus.
7. District and Prosecuting
Attorneys - Grand Jury
Approach to prosecutions taken in Minnesota is to give grand jury
attorney the authority to commence prosecutions and to provide safety-valve
alternative for use in extreme cases of prosecutorial inaction.
Rules Crim.Pros., rules 2.02, 18.01, 18.03, 18.04, 27A M.S.A.; M.S.A
§§ 8.01, 388.12.
8. Indictment and Information
To permit prosecutions by private citizens would entail grave danger
of vindictive use of process of criminal law and could well lead
to chaos in administration of criminal justice.
Syllabus by the Court
1. Appellant judges must decide for themselves whether recusal is
required in case in which party claims bias.
2. A private citizen has no authority to commence and maintain private
prosecutions for alleged violations of criminal law.
J. J. Wild, pro se.
Warren Spannaus, Atty. Gen., Richard
B. Allyn, Sol. Gen., Thomas Jensen, Sp. Asst.
Atty. Gen., Briggs & Morgan and l Leonard J. Keyes, St. Paul,
Considered and decided by SHERAN, C.J., and YETKA, SCOTT, WINTON,
and PREECE, JJ., without oral argument.
SIIERAN, Chief Justice.
 These consolidated appeals
raise the issue of whether a private citizen may commence and maintain
private prosecutions for alleged violations of the criminal law.
We hold that he may not.
In commencing the present action,
plaintiff, J. J. Wild, required the county attorneys of Ramsey and
Hennepin Counties to approve criminal complaints which he had prepared
against defendants' but the respective county attorneys refused
to prosecute. Plaintiff then tried unsuccessfully to persuade the
grand juries of the two counties to issue indictments. Finally plaintiff
filed complaints himself in an attempt as a private citizen to prosecute
The complaint against defendants
filed in Ramsey County alleged a violation of the criminal laws
against conspiracy to commit a crime, Minn.St. §609.175, subd.
2, and corruptly influencing a legislator, §609.425. The complaint
against defendant Mr. Justice James C. Olia in Hennepin County alleged
a violation of the criminal law against perjury, §609.48. The
complaints requested that the named defendant be convicted and sentenced
according to law. The respective complaints were dismissed by the
district courts of Ramsey and Hennepin Counties, and these appeals
from judgments followed.
 1. A preliminary issue is presented
by the affidavits of prejudice which plaintiff had filed against
the special panel of justices considering this appeal. In Section
3.42, and the commentary here, of the A. B. A. Standards of Judicial
Administration, Standards Relating to Appellate Court~ (Approved
Draft, 1977), state the appropriate standards and procedures to
be followed in the case of challenges such as this:
"3.42 Disqualification of Judges.
"A judge of an appellate court must be subject to disqualification
~ in the rules set forth in the Code of Judicial Conduct recommended
by the American Bar Association, and in any case in which the judgment
under review is one by a court in whose decision he participated
as judge in a lower court
"An appellate judge should be subject to challenge for cause
on the same premise as a trial judge, and also. when an appeal involves
a review of his own decision. The most difficult problem concerns
the procedure to he employed. As in the challenge of a trial judge,
if the challenge is sufficient on its face and any reasonable doubt
of the judge's disinterestedness is suggested, the judge may be
expected to disqualify himself. If he does not do so, in the case
of a trial judge
the actual issues relating to disqualification should properly he
determined by another
judge. See 5 2.32, Standards Relating to Trial Courts. In the case
of an appellate judge, however, that procedure would subject the
judge to decision of his disinterestedness by judicial peers with
whom he may continue to serve in a collegial capacity in deciding
the case. Moreover, because an appellate court decides questions
of law rather than fact, the question of an appellate judge's bias'
is often practically indistinguishable from the question of his
views on the law, which are not properly subject to disputation
through the recusal procedure. Given these complications, it is
better that the question of recusal be decided by the judge himself.
It he is a judge of an intermediate appellate court, there remains
the remedy of appeal from a decision in which he participates; if
he is judge of a supreme court, reliance must be placed on his recognition
that a court should not only be disinterested but that it should
appear to be so.
"In some jurisdictions, provision for peremptory challenge
of a trial judge is permitted. See Commentary to §232 (b),
Standards Relating to Trial Courts. This procedure is inappropriate
in in the case of an appellate judge. In the collegial decision-making
of an appellate court an individual judges purely personal views
are of less significance than they would be in a trial court and
he is subject to, collegial restraint should he be inclined to act
on them; an appellate judge has few occasions for exercising the
broad discretion in reposing in a trial judge; and in appellate
litigation there is no occasion for the ~ intense personal interaction
between the judge and the lawyers and litigants that may occur in
a trial court. Moreover, an appellate judge's established views
on law and justice, at least up to a point, are a proper element
of t-he contribution he makes to the function of an appellate court,
particularly in the development of the law. A peremptory challenge
might easily be abused to exclude a judge solely because a litigant
disagreed with his views.
 The three justices of the appellate
court and the two district court judges assigned to the hearing
of this matter pursuant to Minn.Const. art. 6, 5 2, and Minn.St.
2.724, subd. 2, have applied these standards for recusal and have
determined that the affidavit of prejudice filed by plaintiff against
them is without justification. District Court Judge Warren A. Saetre,
originally assigned to consider this case, has recused for personal
2. As staled earlier, the issue which plaintiff raises in his appeal
is whether a private citizen may commence and maintain private prosecutions
for alleged violations of the criminal law.
In answering this question, we start with Rule 17.01, Rules of Criminal
Procedure. This rule contemplates that felonies are to be prosecuted
by either indictment or complaint. The rule does not mention or
allude to any right of private citizens to commence and maintain
criminal prosecutions privately.
Rule 2.02, Rules of Criminal Procedure, governing prosecution by
complaint, provides as follows:
"A complaint shall not be filed or protest issued thereon without
the written ~ approval, endorsed on the complaint, of the prosecuting
attorney authorized to prosecute the offense charged, unless such
judge or judicial officer as may be authorized by law to issue process
upon the offense certifies on the complaint that the prosecuting
attorney is unavailable and the filing of the complaint and issuance
of process thereon should not be delayed."
This rule is in accord with A. B. A. Standards for Criminal Judicial,
Standards Relating to the Prosecution Function and the Defense Function
(Approved Draft, 1971), 5 2.1, which provides: "The prosecution
function should be performed by a public prosecutor who is a lawyer
subject to the standards of professional conduct and discipline."
 The comment to Rule 2.02, Rules
of Criminal Procedure, states that "Rule 2.02 leaves to other
laws the question of the available remedy when a local prosecutor
refuses to approve a complaint " One obvious available remedy
is for the aggrieved citizen to try to appear before the grand jury
and persuade it to indict. While a citizen does not have a right
to appear before the grand jury, he is free to attempt to gel the
grand jury to lake action, and under Rule 18.04, Rules of Criminal
Procedure, the grand jury can permit an aggrieved citizen to appear
as a witness for this purpose. The grand jury under Rules 18.01
and 18.03 consists of 16 to 23 members, randomly selected from a
cross section of the county. Permitting citizens to lake complaints
directly to this body serves as a kind of "safely valve"
and has much to commend it. See, commentary to §2.1 of the
A. B. A. Standards Relating to the Prosecution Function.'
 There are other remedies available
to an aggrieved citizen when a prosecutor refuses to commence a
(a) Minn.St. 388.12 provides:
"The judge of any district court may by order entered in the
minutes al any term of court appoint an attorney of such court to
act as, or in the place of, or to assist, the county attorney at
such term, either before the court or grand jury. The person so
appointed shall take the; oath required by law of county attorneys
and thereupon may perform all his duties at such term of court,
but shall receive no compensation where the county attorney is present
al such term, except by his consent, and to be paid from his salary."
Arguably, a private citizen could petition the district court for
action pursuant to this statute and the court could appoint a special
prosecutor if it decided that this was necessary. See, Comment,
65 Yale L.J. 209 i 215. See, also, the discussion in the commentary
to 2.1 of the A. H. A. Standards Relating to the Prosecution Function.
There may be constitutional objections to this statute, but that
is not an issue which we need to decide. We merely cite this statute
as one of the possible alternatives is available in the case of
allegedly unjustified prosecutorial inaction.
(b) Another possible remedy provided by Minn.St. §8.01, which
reads as follows:
"The attorney general shall appear for the state in all cases
in the supreme and federal courts wherein the state is directly
interested; also in all civil cases of i like nature in all other
courts of the slate whenever, in his opinion, the interests of the
state require it Upon request of the i county attorney he shall
appear in court in such criminal cases as he shall deem; proper.
Whenever the governor shall so request, in writing, he shall prosecute
any person charged with an indictable offense; and in all such cases
he may attend upon the grand jury and exercise ~ the powers of a
Under this statute a citizen could
appeal to the governor, who then might order the attorney general
to commence prosecution.
 (c) A third potential remedy
is mandamus. The problem with mandamus from the standpoint of an
aggrieved citizen is that the decision whether to initiate a particular
prosecution is discretionary and is therefore normally beyond the
scope of mandamus. For a full discussion, see, Nole, 13 Am.Crim.L.Rev,
 In mentioning these alternatives
we do not mean to recommend them to plaintiff. Rather, we cite them
merely to demonstrate that the approach taken in Minnesota is to
(a) give the grand jury and the county attorney the authority to
commence prosecutions (with each theoretically acting as a check
on the unjustified inaction of the other), and (b) to provide safety
valve alternatives for use in extreme cases of prosecutorial inaction.
In arguing that a private citizen has a right to commence and maintain
a criminal prosecution, plaintiff makes many of the arguments that
are made in the leading law review article on the subject. What
plaintiff neglects to mention is that the authors of the comment
concluded that legislative authority was needed for a system permitting
private prosecution. Comment, 65 Yale L.J. 209, 233.
Further, the model statute provided by the authors of the comment,
like Minn.St. 388.12, authorizes appointment by the court of a substitute
attorney and does not permit the aggrieved private citizen to prosecute
the action himself.
 Plaintiff has not cited and
we have not found any authority justifying the instant actions.
This is not surprising because to permit such prosecutions would
entail grave danger of vindictive use the processes of the criminal
law and could well lead to chaos in the administration of criminal
We are satisfied that the district
courts acted properly in dismissing the attempted prosecutions.
Mr. Justices OTIS, ROGOSHESKE,
PETERSON, KELLY, TODD, MacLAUGHLIN, and KNUTSON took no part in
the consideration or decision in this case.