Scott County District Court File No. 2001-22650
Considered and decided by Wright, Presiding Judge, Anderson, Judge, and
1. A grand jury may indict if it finds, on all of the evidence, that there is probable cause to believe that an offense has been committed and that the defendant committed it.
2. An indictment may be dismissed for lack of probable cause if the evidence presented to the grand jury was insufficient to establish probable cause to believe the defendant committed the crimes alleged.
3. Theft by swindle requires an intent by the defendant to cheat or defraud another of property, money, or an instrument by means of some false or deceitful pretense, device, or fraudulent representation, with the intent to appropriate the same to the defendant's use.
4. It is misconduct of a public officer or employee to make a return, certificate, official report, or other similar document with the knowledge that it is false in a material respect.
The opinion of the court was delivered by: G. Barry Anderson, Judge
Appellant State of Minnesota challenges the district court's dismissal of two grand-jury indictments against respondents. Appellant argues the district court applied the wrong rule of law in dismissing the indictments, that respondents improperly challenged probable cause, and that the district court erred by concluding that the evidence submitted to the grand jury was insufficient to establish probable cause for the offenses. Because we conclude that respondents correctly challenged probable cause, the district court properly applied the law, and the district court did not err by concluding that the evidence was insufficient to establish probable cause on the charged offenses, we affirm.
Respondent Mary Flicek (Flicek) was the part-time clerk-treasurer for the city of Elko for more than 23 years. Flicek prepared and presented to the city council each year a list that included, among other things, the names of city residents with delinquent utility accounts and the amount owed by each. Under Elko City Ordinance 11, the preparation of the list was permissive rather than mandatory.
From this list, the city then certified the delinquent accounts of its residents to the county auditor pursuant to Minn. Stat. § 444.075, subd. 3 (2002). The effect of certification was to make collection of the delinquent accounts easier for the city because the delinquent account became an assessment payable with a homeowner's property taxes.
Beginning at latest in 1990, Flicek and her husband's home utility account became delinquent.*fn1 Flicek omitted her delinquent utility account from the lists she prepared and presented to the city council. When this was discovered, the delinquent balance on Flicek's account at the end of 1999 totaled $9,849.26.
Respondent Linda Borgen (Borgen) was elected to the Elko City Council in 1995. Flicek and Borgen had been neighbors and friends for approximately 25 years. From 1990 through 1999, Borgen and her husband failed to pay utility bills on their home totaling $3,164.68 and Flicek omitted their names from the lists of delinquent accounts. From 1995 through 1999, Borgen was present at city council meetings during which the delinquent-utility-account resolutions were submitted by Flicek and passed by the council but took no action to add her name to the delinquent accounts list.*fn2 Consequently, neither Flicek nor Borgen's utility account was certified to the county auditor and amounts owed by both were not added to their property-tax obligation.
In the summer of 2000, an audit of the city of Elko revealed Flicek and Borgen's delinquent utility accounts. The audit was sent to Flicek in June 2000, and it was discussed at a special city-council meeting on June 27, 2000. At this meeting, Flicek told the council that the impending audit report would question the city's collection procedure of delinquent utility accounts. At this time, Flicek and Borgen also disclosed to the council that their accounts were delinquent.
Borgen made sporadic payments on her account from November 1998 through December 1999, but did not bring her account current before the audit. Few, if any, payments were made on Flicek's delinquent balance from 1990 to 1998.*fn3 Shortly before the audit report was publicly released, both Flicek and Borgen made small payments toward their delinquent accounts. As of July 1, 2000, Flicek still had a delinquent utility account balance of $9,712.18 and Borgen had a delinquent account balance of $2,911.56. By September 5, 2000, Borgen's delinquent account balance had been paid in full. By October 23, 2000, Flicek had also paid the full delinquent amount that she owed the city.
At a July 5, 2000 meeting, the city council suspended Flicek with pay and she ultimately resigned as a city employee. No disciplinary action was taken by the city council against Borgen.
On November 19, 2001, a grand jury returned an indictment alleging that Flicek and Borgen committed felony theft by swindle in violation of Minn. Stat. § 609.52, subds. 2(4), 2(5)(i), 3(2) (2000), and misconduct of a public official or employee in violation of Minn. ...