                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1482

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Douglas John Olson,
                                        Appellant.

                                    Filed July 13, 2015
                                         Reversed
                                        Ross, Judge

                               Hennepin County District Court
                                  File No. 27-CR-14-3196

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

John L. Lucas, Minneapolis, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Johnson,

Judge.

                                     SYLLABUS

         A prosecutor abuses the state’s voluntary dismissal authority under rule 30.01 of

the Minnesota Rules of Criminal Procedure and engages in an act of bad faith by

dismissing and refiling a criminal complaint to circumvent the district court’s refusal to

continue the criminal trial.
                                       OPINION

ROSS, Judge

       The state charged Douglas Olson with driving while impaired. The prosecutor was

unprepared to try the case on the date scheduled for trial because the state’s only

witness—the arresting trooper—was voluntarily absent. The prosecutor moved to

continue the trial to a later date, warning that if the district court denied the motion, the

state would “take action, as it deems fit,” to simply dismiss the charge under criminal

procedural rule 30.01 and refile it as a new case. The district court denied the state’s

continuance motion and the state dismissed and refiled the charge. Olson moved to

dismiss the refiled charge, and the district court denied the motion because it reasoned

that the state did not dismiss the original complaint in bad faith. Because a prosecutor

does not act in good faith under rule 30.01 when he dismisses a criminal charge merely to

refile it, effectively nullifying the district court’s refusal to grant his motion to continue,

the district court erroneously concluded that the prosecutor acted in good faith. We

therefore reverse.

                                           FACTS

       In June 2013 a state trooper arrested Douglas Olson for impaired driving and the

state tab charged Olson. The district court scheduled trial for January 23, 2014. The

afternoon before the trial date the prosecutor tried to contact the trooper and learned that

the trooper had left the state for a job interview and would not be back in time to testify.

The prosecutor did not immediately notify the district court.




                                              2
       The district court called Olson’s trial the next morning. The prosecutor then

announced that the trooper—the state’s only intended witness—had left town for a job

interview. He asked the district court to continue the trial to a later date. Olson’s attorney

urged the district court to deny the motion and dismiss the charge. Otherwise, the

attorney predicted, “the prosecutor will exercise a power that’s unilateral in dismissing

this case” and refile the charge, in “essence . . . granting their own continuance.” The

prosecutor confirmed Olson’s prediction, announcing, “[T]he state will take action, as it

deems fit. . . . If the motion for a continuance is denied, it is the state’s intention to

dismiss this case and to recharge it.”

       The district court refused to continue the trial because the motion lacked sufficient

cause, and the prosecutor then dismissed the charge and refiled it within two weeks. The

refiled case went to a different district court judge. Olson moved the district court to

dismiss the charge because the prosecutor had acted in bad faith by dismissing and

refiling it to circumvent the district court’s decision to deny the state’s request for a

continuance. The district court denied Olson’s motion to dismiss because it believed the

prosecutor did not act in bad faith in light of the absent witness.

       The parties proceeded with a stipulated-facts trial, allowing Olson to preserve his

challenge to the district court’s refusal to dismiss the refiled criminal complaint. The

district court found Olson guilty of fourth-degree impaired driving.

       Olson appeals the district court’s refusal to dismiss the refiled complaint.

                                           ISSUE

       Did the district court abuse its discretion by denying Olson’s motion to dismiss?


                                              3
                                        ANALYSIS

       Olson argues that the district court allowed the prosecutor to misuse rule 30.01 of

the Minnesota Rules of Criminal Procedure by dismissing and then refiling the charge to

circumvent the district court’s denial of the state’s motion to continue. We interpret the

procedural rule de novo. State v. Barrett, 694 N.W.2d 783, 785 (Minn. 2005). In doing

so, we look to the words of the rule and consider its purpose. State v. Dahlin, 753 N.W.2d

300, 305 (Minn. 2008).

       We begin with the rule’s relevant language: “The prosecutor may dismiss a

complaint or tab charge without the court’s approval, and may dismiss an indictment with

the court’s approval. The prosecutor must state the reasons for the dismissal in writing or

on the record.” Minn. R. Crim. P. 30.01. The prosecutor’s reasons are important to how

the district court treats the dismissal, because this court and the supreme court have

interpreted the rule as allowing the prosecutor to refile a complaint that the state

voluntarily dismissed only if the prosecutor dismissed the complaint in good faith. State

v. Couture, 587 N.W.2d 849, 853 (Minn. App. 1999), review denied (Minn. Apr. 20,

1999); cf. State v. Pettee, 538 N.W.2d 126, 131 n.5 (Minn. 1995) (observing good-faith

requirement for refiled indictments).

       A district court supervising a prosecutor’s use of this rule must therefore consider

the prosecutor’s actions in light of this good-faith standard. The prosecutor indicated on

the record the state’s reason for dismissing Olson’s charge. After Olson’s counsel warned

that the state would use a dismiss-and-refile tactic to attempt to bypass the district court’s

denial of the state’s pending motion to continue the trial, the prosecutor confirmed this,


                                              4
declaring, “[T]he state will take action, as it deems fit,” in response to the district court’s

decision on the state’s continuance motion. And he left no room for misunderstanding,

adding that “[i]f the motion for a continuance is denied, it is the state’s intention to

dismiss this case and to recharge it.” In so many words, the prosecutor declared that

either the district court must yield to the state’s unsupported motion for continuance or

the state would effectively enter its own order for continuance by way of a rule-30.01

dismissal-and-refiling. Our decision in this appeal therefore turns on whether a

prosecutor’s use of the rule to unilaterally dismiss and refile a criminal complaint to

effect a do-it-yourself continuance order – essentially nullifying the district court’s

considered decision to deny the state a continuance – is an act of good faith.

       We do not interpret and apply rule 30.01 in a vacuum. The rule has a federal

predecessor, which is rule 48(a) of the Federal Rules of Criminal Procedure. See Minn. R.

Crim. P. 30 cmt. (citing caselaw that connects the federal and state rules). And we have

been specifically taught that, because “Rule 30.01 essentially adopts the provisions of

Rule 48(a), Federal Rules of Criminal Procedure,” caselaw interpreting federal rule 48(a)

informs the interpretation of state rule 30.01. State v. Aubol, 309 Minn. 323, 326, 244

N.W.2d 636, 638 (1976) (footnote omitted). So we can look to the federal rule as we

consider whether the prosecutor’s purpose here is a good-faith use of rule 30.01, as the

district court concluded. Both the general principles that underlie the rule and the specific

consideration of courts that have addressed it inform us that we must reject the state’s

implicit position that the prosecutor has unfettered authority to dismiss and refile a

complaint.


                                              5
       The federal rule from which our state rule was adopted reflects the separation of

executive and judicial powers. Before the federal rule was adopted in 1944, prosecutors

could dismiss charges at will. See Fed. R. Crim. P. 48(a) Notes of Advisory Committee

on Rules (observing that the rule “will change existing law” that allowed the “prosecutor

[to] enter a nolle prosequi in his discretion, without any action by the court”). Citing

federal rule 48(a), among other sources, future Chief Justice Burger explained for the

circuit court, “Few subjects are less adapted to judicial review than the exercise by the

Executive of his discretion in deciding when and whether to institute criminal

proceedings, or what precise charge shall be made, or whether to dismiss a proceeding

once brought.” Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967). Given the

prosecutor’s broad authority as a member of the executive branch, “as an incident of the

constitutional separation of powers, . . . the courts are not to interfere with the free

exercise of the discretionary power of [prosecutors] in their control over criminal

prosecutions.” Id. at 481. Judge Burger then gave an example demonstrating how a

prosecutor exercises this discretionary control and the reason courts generally do not

encroach in those decisions:

              [The prosecutor] is expected to exercise discretion and
              common sense to the end that if, for example, one is a young
              first offender and the other older, with a criminal record, or
              one played a lesser and the other a dominant role, one the
              instigator and the other a follower, the prosecutor can and
              should take such factors into account; no court has any
              jurisdiction to inquire into or review his decision.

Id. at 482. Put another way, the executive branch’s absolute discretion not to charge

would be illusory if it did not also have the authority to dismiss a charge.


                                              6
       Given this background, we can see that federal rule 48(a) and, by extension, state

rule 30.01, have internal opposing features. On one hand, each embodies the prosecutor’s

historic discretion to dismiss a charge, but on the other, each invites some judicial

oversight into that process. This oversight is justified by the fact that, despite a

prosecutor’s significant discretion as an executive branch officer, the executive branch

has no discretion to cross into judicial branch authority. The state supreme court

recognized this principle long ago, even before the adoption of either the federal or state

rule. That is, the district court has the authority to police the strategic attempts by

prosecutors to undermine the inherent case-management authority that falls exclusively

within the court’s province: “The county attorney’s conduct of criminal prosecutions is

under the control of the court. Continuances, nolle prosequis, and dismissals of causes

must be sanctioned by the court.” State v. Cooper, 147 Minn. 272, 276, 180 N.W. 99, 101

(1920). In other words, more than 10 years before the federal courts adopted rule 48 and

half a century before Minnesota adopted rule 30.01, the supreme court had already

recognized that a Minnesota prosecutor could not, without court approval, even enter a

nolle prosequi or dismiss a criminal action, let alone unilaterally effect a continuance.

That is, despite the general authority of the executive branch and the broad discretion

afforded to prosecutors in charging and dismissal decisions, in Minnesota prosecutors

historically have lacked unfettered power to effect a continuance or dismiss a charge. It is

evident then that the prosecutor’s stated purpose here to use the dismiss-and-refile tactic

to effect a continuance for the state (and to undo the district court’s refusal to order the




                                             7
continuance), infringes the authority historically vested in the district court and

unavailable to prosecutors in Minnesota before rule 30.01 was adopted in 1975.

       We have no reason to conclude that rule 30.01 has removed this fence between the

prosecutor’s discretion to dismiss and the court’s discretion to deny the prosecutor a

continuance. Rather, the rule, along with the supreme court’s recognition in Pettee that a

prosecutor cannot refile an indictment that is dismissed under rule 30.01 in bad faith,

embody the same principles.

       Federal caselaw also embodies these principles. Caselaw cited approvingly by our

state supreme court informs us that the prosecutor’s reason for dismissing under rule

30.01 here establishes that he was not applying the dismissal rule in good faith. In United

States v. Hayden, the Ninth Circuit interpreted federal rule 48(a) and observed, “Of

course, had the district judge concluded and specifically found that the government

utilized the Rule 48(a) motion as a pretext to bypass his denial of the continuance, a clear

act of bad faith, he could have reversed his earlier Rule 48(a) ruling.” 860 F.2d 1483,

1488–89 (9th Cir. 1988) (emphasis added). Our state supreme court cited Hayden

approvingly for the proposition that rule 30.01 “allows the state, provided it is not acting

in bad faith, to voluntarily dismiss an indictment without prejudice and later to reindict

based on the same or similar charges.” Pettee, 538 N.W.2d at 131 n.5. We in turn have

cited Pettee’s circumscription of bad-faith refilings of indictments to apply to charges

refiled by complaint as well. Couture, 587 N.W.2d at 853. Under this caselaw, we are

convinced that a prosecutor’s plan to use the rule as a dismiss-and-refile device to




                                             8
circumvent a district court’s refusal to grant the prosecutor’s motion to continue is “a

clear act of bad faith.”

       Our holding is consistent with the district court’s related statutory authority. The

statutes allow for a continuance to be effected only “by the court,” not by the parties.

Minn. Stat. § 631.02 (2012). The parties have a limited role and a significant burden

when it comes to efforts to continue: “either the prosecution or defense” may move the

court for a continuance, and the moving party “must show sufficient cause for the

continuance.” Id. And of course the district court has the authority to deny the

prosecutor’s motion to continue. See State v. Stroud, 459 N.W.2d 332, 335 (Minn. App.

1990). This authority and the entire arrangement is almost useless under the state’s theory

that a prosecutor can use the rule at will to obtain a continuance denied by the court. How

could district court judges effectively manage their trial calendars if, in any criminal case

and at any pretrial moment of the prosecutor’s choosing, the prosecutor could cite rule

30.01 to fashion the state’s own continuance? What is the point of a statute that requires

the moving party to show “sufficient cause” for a continuance if one of the parties can

use rule 30.01 to obtain a continuance without that showing? What is the significance of

the district court’s discretion to deny a motion to continue if the court no longer possesses

the authority to prevent the state from unilaterally granting itself a continuance? To allow

the state to use the rule for the express purpose of evading the district court’s continuance

denial would erroneously suggest that rule 30.01 and its federal counterpart were crafted

to give only the prosecutor the means to obtain a continuance at will, leaving the

defendant alone to submit to the district court’s calendar-management authority.


                                             9
       We think instead that rule 30.01 expressly requires the prosecutor to state on the

record the reasons for dismissal so that the district court can continue to exercise its

historic, inherent authority to reject bad-faith, reissued complaints. Cf. State v. Hart, 723

N.W.2d 254, 259 (Minn. 2006) (restating the district court’s inherent authority to dismiss

a case in the interests of justice). And we are satisfied that a prosecutor’s attempt to side-

step the district court’s authority to reject insufficient continuance motions constitutes a

bad-faith reason for dismissal under rule 30.01. We therefore hold that when a prosecutor

voluntarily dismisses a complaint to initiate a dismiss-and-refile tactic and to circumvent

the district court’s denial of a continuance motion, the prosecutor acts in bad faith in both

the dismissal and the refiling.

       We focus again on this case. The prosecutor, the defendant, and the defense

attorney were all present in the courtroom after the district court called Olson’s case for

trial. Everyone appeared at the appointed time except the state’s only witness, whom the

prosecutor had not apparently subpoenaed to appear and who had left the state voluntarily

long after the district court had informed the parties of the scheduled trial date. No one

challenged the correctness of the district court’s decision that the state did not show

substantial cause for its requested continuance, even though the district court might have

decided that motion differently in its discretion.

       The prosecutor’s stated reason for the dismissal could not have been clearer.

Again, he said, “If the motion for a continuance is denied, it is the state’s intention to

dismiss this case and to recharge it.” He declared flatly, “[T]he state will take action, as it

deems fit.” The district court refused to dismiss the refiled charge notwithstanding the


                                              10
prosecutor’s stated purpose of thwarting the court’s continuance order, albeit an order

issued by a different district court judge. Although the district court correctly explained

that the state “may later recharge [when a complaint was dismissed under Rule 30.01] . . .

provided it is not acting in bad faith,” it failed to recognize that the prosecutor’s plainly

stated purpose to override the court’s uncontested continuance decision by executive

action is never an act of good faith. The court therefore erroneously concluded that “the

state did not act in bad faith.” Because the state may not refile charges that are dismissed

in bad faith under rule 30.01, the district court abused its discretion by refusing to dismiss

the refiled charge here.

                                      DECISION

       The state acted in bad faith when it used its dismissal power under rule 30.01 as a

dismiss-and-refile tactic to circumvent the district court’s decision denying the state’s

pretrial motion to continue the criminal trial. The district court therefore abused its

discretion by denying Olson’s motion to dismiss the complaint filed under the state’s

bad-faith use of rule 30.01. We reverse Olson’s conviction.

       Reversed.




                                             11
