This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Alan R. Vaughn,





City of North Branch, et al.,



Filed January 2, 2002

Affirmed; motion granted.

Harten, Judge


Chisago County District Court

File No. C1-00-1585


Alan R. Vaughn, 39619 Horus Avenue, P.O. Box 247, North Branch, MN 55056 (appellant pro se)


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


Stephen F. Buterin, Jardine, Logan & O’Brien, P.L.L.P., 444 Cedar Street, Suite 2100, St. Paul, MN 55101-2160 (for respondents City of North Branch, Richard Anderson, Ellis Johnson, Rodney Lofquist, Donald White, Kevin Engel and John Moosey)


Christopher D. Johnson, Miller Law Office, P.O. Box 807, Wyoming, MN 55092 (for respondents Thomas Miller and Julie Dressel)


Barry L. Blomquist, 728 Elm Street, North Branch, MN 55056 (for respondent Dennis Gustafson)


Stephen G. Andersen, 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for observer James Rueter)


Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.*


U N P U B L I S H E D   O P I N I O N




Appellant Alan R. Vaughn argues that the district court erred in granting respondents’ motions to dismiss (for failure to state a claim) his petition to have the court appoint a special prosecutor under Minn. Stat. § 388.12 (2000).  Because we agree with the district court that appellant seeks relief that cannot be provided by respondents, we affirm. 



This case stems from a denial of municipal approval for appellant’s proposed real estate development in North Branch.  In response, appellant filed complaints with the Chisago County Attorney against members of the city council and planning commission, the mayor, the city engineer, the city attorney, and the city administrator, alleging violation of local ordinances, state statutes, and the Minnesota and United States Constitutions.

When the county attorney informed appellant that he would not conduct an investigation, appellant petitioned the district court to appoint a special prosecutor under Minn. Stat. § 388.12 (2000) to investigate respondents’ alleged criminal activities.
Respondents moved to dismiss. 

The district court granted respondents’ motions to dismiss under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted and respondents’ motions for attorney fees and costs.  This appeal followed.

 D E C I S I O N

            Appellant makes several challenges to the district court’s ruling.  He first claims the district court’s decision was tainted by bias.  He also argues the district court erred in granting respondents’ motion to dismiss because Minn. Stat. § 388.12 (2000) allows a district court to appoint a special prosecutor.  Finally, he challenges the district court’s decision to award attorney fees and costs.

1.         Alleged District Court Bias

            At the hearing, the district court judge disclosed that he knew several respondents through his earlier service as county attorney.  Appellant orally objected to the district court judge hearing the case because of his relationships with Judge Reuter and Mr. Alliegro[1].  The district court judge declined to recuse himself, noting

            [i]f I were to decide that my relationship with either of those people was such that I had to recuse in this case, then there’s really painfully little I could do as a judge; and in most small communities, these type[s] of relationships just exist, and that’s the way it works out.


Minn. R. Civ. P. 63.02, provides:

No judge shall sit in any case if that judge is interested in its determination or if that judge might be excluded for bias from acting therein as a juror.


Parties may move for disqualification of a judge as a matter of right by making and serving a notice to remove on the opposing party and filing the notice with the court administrator.  Minn. R. Civ. P. 63.03.  Appellant did not follow these procedures.  When appellant did object, the district court judge was already hearing the case; therefore, appellant was required to present “an affirmative showing of prejudice.”  Minn. R. Civ. P. 63.03. 

Denial of a recusal motion is within the district court’s discretion and should not be reversed absent a clear abuse of that discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  To be disqualifying, prejudice

must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.


 In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986).  Familiarity alone is not an affirmative showing of bias.  See id. (judge’s familiarity with an attorney did not show bias).  Appellant has presented no evidence suggesting that the district court judge’s relationship with Judge Reuter and Mr. Alliegro affected his decision.   

            We conclude that the district court judge did not abuse his discretion in denying appellant’s motion for recusal.

2.         Motion to Dismiss


            The district court granted respondents’ motions to dismiss for “failure to state a claim upon which relief can be granted.”  Minn. R. Civ. P. 12.02(e).  In reviewing judicial dismissal for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint set forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).

            Minn. Stat. § 388.12 empowers a district court to “appoint an attorney of such court to act as, or in the place of, or to assist, the county attorney.”  Appellant asks that we reverse the district court and appoint a special prosecutor.  He seeks no other form of relief.  He indicates in his brief that the

sole reason for naming [respondents] in this case, was to serve notice of the action and the alleged crimes, of which [respondents] were accused * * * .  [Appellant] did not request any action by [respondents] * * * .  


The desire to provide notice is not a viable claim for relief.  Furthermore, respondents have no authority to appoint a special prosecutor, the only relief sought by appellant.

Appellant may petition the district court for a special prosecutor under Minn. Stat. § 388.12, but there is no precedent for bringing a suit such as this against respondents.  Only two Minnesota Supreme Court decisions address section 388.12.  In State ex rel. Graham v. Klumpp, 536 N.W.2d 613 (Minn. 1995), the Minnesota Attorney General moved ex parte for the district court to appoint a special prosecutor.  Id. at 614.  In State ex rel. Wilds v. Otis, 257 N.W.2d 361 (Minn. 1977), the court stated that a party could petition the district court to appoint a special prosecutor as an alternative to private prosecution.  Id. at 364.  Neither case implied that the parties against whom prosecution was sought could be named as defendants.[2]   

Because respondents cannot provide the relief sought by appellant, the district court did not err in granting respondents’ motions to dismiss. 

3.         Attorney Fees and Costs and Disbursements

            “The standard of review for an appellate court examining an award of attorney fees and costs is whether the district court abused its discretion.”  Minn. Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903, 904 (Minn. App. 1995) (citation omitted), review denied (Minn. Jan. 25, 1996). 

            A court may impose sanctions if it determines that a case was brought for an “improper purpose, such as to harass,” or is not warranted by existing law.  Minn. Stat. § 549.211, subds. 2(1) - (2), 3 (2000).  Over several years, appellant has sent complaints about the alleged criminal activities of respondents to the Office of Lawyers Professional Responsibility, to two different Chisago County attorneys, and to the Attorney General.  Although appellant has not been able to convince anyone that his complaints have merit, he has continued to bring suit.  Because appellant knew or should have known that his claims lacked merit, the district court did not abuse its discretion in imposing sanctions on appellant for bringing a claim not warranted by existing law or for the purpose of harassing respondents.

            Respondents also move for an award of attorney fees and expenses incurred in defense of this appeal.  See Hughes v. Sinclair Mktg., Inc., 375 N.W.2d 875, 879 (Minn. App. 1985) (holding that when statute authorizes award of attorney fees for district court proceedings, appellate fees also authorized for defense of favorable decision), aff’d in part, rev’d in part on other grounds, 389 N.W.2d 194, 200 (Minn. 1986).  Respondents have established that they are entitled to fees under Minn. Stat. § 549.211, and we award $1,900 for this appeal.

            Affirmed; motion granted.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Judge Reuter and Mr. Alliegro were not originally named as defendants.  They are the former and current county prosecutors whom appellant later sought to join as defendants.

[2] We note that in both cases the supreme court expressed reservations about the constitutionality of section 388.12.