Grand Jury: Remedy to Prosecutorial Inaction
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.
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 defendants.
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
 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 the 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 reasons.
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
 There are other remedies available to an aggrieved citizen when
a prosecutor refuses to commence a prosecution:
(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, 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 like nature in all other
courts of the slate whenever, in his opinion, the interests of the
state require it. Upon request of the 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, 668, 585.
 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 justice.
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