State of Minnesota, Respondent, vs. Reginald Eddie McKinley, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-1263

State of Minnesota,
Appellant,

vs.

Julian Fuentes Clavel,
Respondent.

 

Filed January 24, 2000
Reversed and remanded
Willis, Judge

Nicollet County District Court
File No. C69975

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Michael K. Riley, Nicollet County Attorney, Todd W. Westphal, Assistant County Attorney, 322 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for appellant)

Leslie J. Rosenberg, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for respondent)

Considered and decided by Willis, Presiding Judge, Short, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS

, Judge

The State of Minnesota appeals from the district court's pretrial order dismissing charges of felony nonsupport of a child and misdemeanor criminal contempt against respondent Julian Fuentes Clavel. We reverse and remand.

 

FACTS

In September 1997, Clavel was ordered to pay child support pursuant to Minn. Stat. § 518.5511 (1996). In February 1999, the state filed a criminal complaint against Clavel, alleging that he had failed to make the required child-support payments since May 1998. Clavel was charged with felony nonsupport of a child, in violation of Minn. Stat. § 609.375, subd. 2a (1998), and misdemeanor criminal contempt, in violation of Minn. Stat. § 588.20, subd. 2(8) (1998).

On July 16, 1999, the district court dismissed the complaint for lack of probable cause, concluding that the charges could not be pursued because the supreme court ruled in Holmberg v. Holmberg, 588 N.W.2d 720 (Minn. 1999), aff'g 578 N.W.2d 817 (Minn. App. 1998), that the administrative process through which Clavel was ordered to pay child support was unconstitutional. The state appeals.

 

D E C I S I O N

Because the district court determined that the charges against Clavel must be dismissed under Holmberg, we review the dismissal de novo. See State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999) (stating that pretrial dismissals based on questions of law are reviewed de novo).

The state may appeal "probable cause dismissal orders based on questions of law." Minn. R. Crim. P. 28.04, subd. 1 (1); see Minn. R. Crim. P. 28 cmt. (1999) (discussing change in Rule 28.04 to reflect case law holding the same). But this court will reverse the pretrial determination of the district court only if the state clearly and unequivocally demonstrates that the district court erred in its judgment and that, "unless reversed, the error will have a critical impact on the outcome of the trial." State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987); see Minn. R. Crim. P. 28.04, subd. 2 (2) (requiring the state to include in notice of appeal of pretrial determination statement "as to how the trial court's alleged error, unless reversed, will have a critical impact on the outcome of the trial").

Clavel argues that the state has not demonstrated the required critical impact because the state may still pursue civil causes of action against him. But there is a critical impact when a complaint is dismissed for lack of probable cause. State v. Hanson, 583 N.W.2d 4, 5-6 (Minn. App. 1998), review denied (Minn. Oct. 29, 1998) (citing State v. Ohrtman, 466 N.W.2d 1, 2 (Minn. App. 1991)). And this court has previously found critical impact on the outcome of a trial when the effect of a pretrial determination was to reduce an offense from a felony to a petty misdemeanor. State v. Eggler, 372 N.W.2d 12, 14 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985). Here, the district court's determination has the effect of terminating the prosecution and precluding any further criminal prosecution. We conclude that the state has demonstrated critical impact.

The state argues that the district court erred in determining that Holmberg mandates dismissal of the charges against Clavel. The Holmberg court held that Minnesota's administrative child-support process, Minn. Stat. § 518.5511 (1996), violated the separation-of-powers doctrine of the Minnesota Constitution. 588 N.W.2d at 726. But the court stated that retroactive application of its ruling would "not protect the principle of separation of powers any more than a prospective ruling" and could produce inequitable results in individual cases. Id. at 727. Thus, the supreme court determined that "[w]ith respect to other parties and cases, [this] judgment shall not be effective and the administrative child support process shall remain in place until July 1, 1999." Id. The supreme court reaffirmed that the Holmberg decision was only to be applied prospectively in the subsequent Order Establishing Transition Rules for Child Support Matters, No. C4-99-404 (Minn. Apr. 16, 1999). The court stated that "[a]ll actions taken pursuant to Minnesota Statutes § 518.5511 and § 518.5512 prior to July 1, 1999, shall remain effective on and after July 1, 1999." Id. at para. 1. The court further stated that "[a]ny order issued by an administrative law judge in conformity with Minnesota Statutes § 518.5511 and § 518.5512 prior to July 1, 1999, shall remain effective and fully enforceable by the district courts on and after July 1, 1999." Id. at para. 3 (emphasis added).

Clavel was ordered in September 1997 to provide child support pursuant to Minn. Stat. § 518.5511. Thus Holmberg does not invalidate Clavel's child-support order or render the order unenforceable by the district courts.

The district court ruled that Holmberg operates retroactively with respect to criminal charges and dismissed the complaint against Clavel. The district court recognized that the Holmberg decision "clearly refers to prospective application," but the court stated that it could "not believe that a statute declared to be unconstitutional can be used as a basis for criminal prosecution." Clavel was charged with felony nonsupport of a child, in violation of Minn. Stat. § 609.375, subd. 2a (1998), and misdemeanor criminal contempt, in violation of Minn. Stat. § 588.20, subd. 2(8) (1998). Section 609.375 provides that "whoever is legally obligated to provide care and support" to a child and has failed to do so for more than 180 days is guilty of a felony. Minn. Stat. § 609.375, subds. 1, 2a. Section 588.20 provides that a person who fails to pay court-ordered child support is guilty of misdemeanor criminal contempt. Minn. Stat. § 588.20, subd. 2(8). Because Holmberg does not render Clavel's child-support order of September 1997 unenforceable, the district court erred in dismissing the complaint against Clavel on the basis of the Holmberg decision.[1]

 

Reversed and remanded.

[1] In the memorandum accompanying its order to dismiss the complaint against Clavel, the district court mentions in passing a number of "due process and procedural issues." The district court did not base its order on those issues, and we express no opinion on whether the September 1997 child-support order was valid. We hold only that Holmberg does not invalidate the September 1997 order.