Charged with Illegally Holding Public Office? A Minnesota Lawyer Explains Your Rights Under § 609.44
You find yourself in a bizarre and deeply frustrating position. You believe you are the rightful holder of a public office, but now the state of Minnesota has charged you with a crime for acting on that belief. Perhaps you are caught in the middle of a contentious and disputed election, and you are fighting for the position you are convinced you won. Maybe you believe your removal from a board or commission was illegal, and you are refusing to step down as a matter of principle. Or perhaps your term ended, but you are refusing to hand over the office records because you believe your successor is illegitimate or that the transition process is legally flawed.
Instead of resolving this as the political or administrative dispute it is, the opposition has decided to use the heavy hand of criminal law to force you out. You are being accused of intentionally and illegally exercising the functions of a public office or refusing to surrender it. This is a gross misdemeanor charge that threatens you with jail time, fines, and public humiliation designed to end your career in public service. As a Minnesota criminal defense attorney who has handled unique and politically charged cases across the state—from city councils in Minneapolis and St. Paul to township boards in greater Minnesota—I understand how to defend you. You are not just fighting a criminal charge; you are fighting for your rights and your reputation.
When a Political Dispute Becomes a Crime: What Does This Charge Mean?
Minnesota Statute § 609.44 is a rarely used law that turns a political or administrative power struggle into a criminal matter. It covers two distinct situations. The first is illegally assuming a public office. This means you are acting in an official capacity—signing documents, casting votes, holding meetings, giving orders—when the state believes you have no legal right to that position. This could stem from a disputed election, a questionable appointment, or a situation where a public body has been legally dissolved. The state isn’t just saying you’re wrong; they are saying your attempt to serve is a crime.
The second part of the law covers nonsurrender of a public office. This applies when you have legitimately held a public office, but your legal right to it has ended. This could be because your term expired, you were recalled or removed, or your legally certified successor is ready to take over. If you then refuse to give up the position or surrender the “incidents” of the office—such as the keys, the seal, official books, or papers—to the person legally entitled to them, you can be charged with a crime. This law essentially criminalizes the act of clinging to power after your authority has ceased.
The Law on Holding Public Office: Minnesota Statute § 609.44
The legal basis for the charge against you is Minnesota Statute § 609.44. The language is direct, and understanding it is the first step in building your defense. It outlines the specific actions the state must prove you committed to find you guilty.
609.44 PUBLIC OFFICE; ILLEGALLY ASSUMING; NONSURRENDER.
Whoever intentionally and without lawful right thereto, exercises a function of a public office or, having held such office and the right thereto having ceased, refuses to surrender the office or its seal, books, papers, or other incidents to a successor or other authority entitled thereto may be sentenced to imprisonment for not more than 364 days or to payment of a fine of not more than $3,000, or both.
The State’s Uphill Battle: What the Prosecutor Must Prove
For the state to turn a political dispute into a criminal conviction, it must prove every element of the offense beyond a reasonable doubt. This is a significant burden, especially when the case revolves around complex questions of election law, administrative procedure, and your state of mind. Our defense will focus on showing that the state cannot meet this high standard.
- A Public Office and its Functions: The state must first prove that the position in question is legally considered a “public office” and that the actions you took were “functions” of that office. While seemingly straightforward, we can challenge whether a specific advisory role or a temporary committee position meets the strict legal definition of a public office, or argue that the actions you took were those of a private citizen, not an officeholder.
- An Intentional Act: The prosecutor must prove that you acted intentionally. This means you consciously decided to exercise the functions of the office or to refuse to surrender it. If your actions were inadvertent, a result of confusion, or based on a misunderstanding of your duties, you did not have the required criminal intent. This element is crucial in separating a deliberate usurpation of power from a good-faith mistake.
- Without Lawful Right: This is the heart of the matter and the key to your defense. The state must prove that you acted without lawful right. We will vigorously argue that you had a good-faith belief that you did have the lawful right to the office. Whether based on a pending election challenge, a belief that your removal was illegal, or advice from an attorney, if you genuinely believed you were in the right, you did not commit a crime.
More Than Just a Fine: The Penalties for a Conviction
While categorized as a gross misdemeanor, do not underestimate the damage a conviction under this statute can cause. The formal penalties are significant, but the informal, lifelong consequences to your reputation and future in public service can be even more devastating. The state is aiming to not only punish you but to publicly discredit you and end your political career.
Gross Misdemeanor Sentencing
If convicted under § 609.44, the court can impose the following penalties:
- Up to 364 days in the county jail.
- A fine of up to $3,000.
- A period of probation, which would come with its own set of conditions you must follow.
Reputational Damage and Political Fallout
Perhaps more than any other gross misdemeanor, a conviction for illegally holding or refusing to surrender public office is a scarlet letter in public life. It creates a permanent public record that you were found to have illegitimately clung to power. This can make it virtually impossible to ever be elected, appointed, or even taken seriously in Minnesota political or community circles again.
How Political Fights Turn Criminal: Real-Life Scenarios in Minnesota
These unusual charges are almost never brought in a vacuum. They are the explosive conclusion to bitter and prolonged political battles, often at the local level in cities and townships across Minnesota. They represent a breakdown in the normal political process, where one side decides to use the criminal justice system as a weapon against the other.
These scenarios illustrate how a person acting on their convictions could find themselves facing a criminal charge.
The Disputed Township Election near Rochester
You ran for a township supervisor position in a small community near Rochester. The initial result was incredibly close, and a recount is being legally contested in civil court. Believing the recount process is fraudulent and that you are the rightful winner based on the initial count, you appear at the first scheduled meeting and attempt to take your seat and call the meeting to order. The opposing faction calls the sheriff, and you are charged with illegally assuming a function of a public office.
The Fired City Official in Bloomington
You served as a department head for the city of Bloomington. The city council voted to terminate your employment in a closed-door meeting that you believe violated Minnesota’s Open Meeting Law. As a form of protest and to preserve your legal rights for a wrongful termination lawsuit, you refuse to vacate your office or turn in your city-issued keys and laptop. The city manager, wanting to force the issue, has you charged with nonsurrender of public office.
The Contentious School Board Meeting in Maple Grove
After a series of heated policy debates, a majority faction of the Maple Grove school board votes to remove you from your position as board chair, a move you believe is procedurally improper under the board’s own bylaws. At the next meeting, you refuse to step down from the center chair and attempt to run the meeting. The new majority has you escorted out and files a police report, leading to a charge of illegally exercising a function of a public office.
The Dissolved Commission in St. Cloud
You were appointed to a special planning commission by the St. Cloud city council. A new council is elected and promptly votes to dissolve your commission. Believing the commission’s work is vital and that the council’s action was improper, you and other former members continue to meet, using old letterhead to send out “official” recommendations. You are charged under § 609.44 for exercising the function of a public office that no longer exists.
Defending Your Right to Office: How We Fight Back
When you are charged with a crime for what you believe is a righteous political or legal stand, your defense must be as principled and tenacious as your convictions. The state is attempting to use a blunt criminal statute to resolve a nuanced political problem. Our strategy will be to expose this misuse of the law and to prove that your actions were not criminal, but were based on a legitimate, good-faith belief.
This is not a typical criminal case. The defense will likely involve complex issues of election law, administrative procedure, and even constitutional rights. We will build a case that shows you are not a criminal usurper, but a citizen fighting for what you believe is right in the only way you knew how. We will argue that this is a matter for a civil court or the ballot box, not a criminal courtroom.
Good-Faith Belief of Lawful Right
This is the most powerful defense you have. We will argue that you did not act “without lawful right” because you had a genuine, reasonable, and good-faith belief that you were legally entitled to the office.
- Contested Election or Pending Lawsuit: If your right to the office is the subject of an ongoing civil lawsuit, an election contest, or a formal appeal, we will argue that your legal right has not been definitively extinguished. You cannot be convicted of a crime while the underlying legal issue is still being legitimately disputed in the proper forum.
- Improper Removal Process: We will scrutinize the process by which you were allegedly removed from office. If the board or council that removed you failed to follow its own bylaws, state statutes, or the Open Meeting Law, we can argue that their action was legally void and that you, therefore, remained the rightful officeholder.
Lack of Criminal Intent
The state must prove you intentionally committed a crime. We will argue that your intent was not to illegally seize power, but to preserve your legal rights or to act in what you believed was the public’s best interest.
- Action Based on Advice of Counsel: If you were acting based on the advice of an attorney who told you that you had a right to the office or that you should not surrender documents pending a lawsuit, this is powerful evidence that you lacked criminal intent.
- Protest or Preservation of Rights: We can frame your refusal to surrender the office not as a criminal act, but as a symbolic act of protest against what you believe was an illegal action by the government, done to preserve your ability to challenge that action in court.
The Matter is a Civil Dispute, Not a Crime
We will argue to the judge and prosecutor that they are misusing the criminal justice system. A criminal court is ill-equipped to decide the winner of an election or the legality of a city council’s vote.
- Wrong Venue: We will file motions to dismiss the criminal charges on the grounds that this is fundamentally a civil dispute that must be resolved in civil court. We will argue that the criminal prosecution is an attempt to circumvent the proper legal channels for resolving political and administrative disputes.
Your Urgent Questions on Public Office Charges
Will I go to jail for this charge?
As a gross misdemeanor, this charge carries a potential sentence of up to 364 days in jail. However, given the nature of the offense, it is unlikely a judge would impose a lengthy jail sentence, especially for a first-time offender. The more probable outcome would be probation and a fine, but we will fight for a complete dismissal to avoid any penalty.
Can this charge be dismissed?
Yes, absolutely. In fact, seeking a dismissal is our primary goal. We can argue that the case is a civil matter, not a criminal one, or that the state cannot prove you acted without a good-faith belief in your right to the office. These are strong arguments for a pretrial dismissal.
What if I truly believe I won the election?
This is the core of your defense. If you have a reasonable and genuine belief that you are the rightful winner, and especially if the election is under a formal legal challenge, you did not act with criminal intent. Your actions are those of a candidate fighting for their rights.
Is this a felony?
No. In Minnesota, this offense is a gross misdemeanor. While serious, it does not carry the same severe collateral consequences as a felony, such as the automatic loss of firearm rights.
What’s the difference between a civil election contest and this criminal charge?
A civil election contest is the proper legal process for challenging the results of an election in court. This criminal charge is the government’s attempt to punish someone for acting as if they won while that contest is pending or after it has been decided against them.
What does it mean to “exercise a function” of an office?
This means performing an official duty associated with the office. Examples include voting at a meeting, signing an official document, using an official seal, issuing a directive to a public employee, or spending public funds.
What are the “incidents” of an office I might be accused of not surrendering?
This refers to the property of the office. It can include physical items like keys to the office, a city-owned laptop or cell phone, and official records, as well as more symbolic items like the official seal or documents.
What if I was just following my lawyer’s advice?
Acting on the advice of legal counsel is a very strong defense against the element of intent. It shows that you were not acting with a criminal mind, but were attempting to follow the law based on the guidance of a legal professional.
The Aftermath of a Conviction
For a person involved in public life, a conviction for illegally assuming or refusing to surrender an office is a devastating blow. The consequences go far beyond the sentence imposed by the court and can permanently alter your standing in the community.
The End of Your Public Service Career
A conviction for this crime will hang over any future attempt you might make to run for office or seek a public appointment. It becomes a permanent part of your public story, an event your opponents will use against you forever. It effectively ends any credible career in public service.
Public Humiliation and Reputational Harm
These cases, being unusual and political, can often attract local media attention. A conviction results in public records and news stories that brand you as someone who illegitimately tried to hold onto power. This can cause significant harm to your reputation among your peers, friends, and community members.
Financial Costs of the Fight
In addition to any criminal fines, you will likely be facing significant legal fees from two fronts: the criminal defense and the underlying civil or political dispute you were fighting in the first place. The financial toll of defending your position can be substantial.
A Permanent Criminal Record
Even a gross misdemeanor conviction is a blemish on your record that can have unforeseen consequences. It may need to be disclosed on certain job applications, and it can create complications in other areas of your life. Our goal is to avoid a conviction of any kind.
Why You Need a Strategic Defender for This Unique Political Crime
You cannot trust your defense to an attorney who only handles routine criminal cases. A charge of illegally assuming public office is a rare and complex matter that lives at the intersection of criminal, civil, and administrative law. You need a lawyer who can navigate all these areas to protect you.
A Private Lawyer’s Dedication to Your Unique Fight
This case is your life right now, and it deserves to be your lawyer’s priority. As a private defense attorney, I will dedicate the time and energy necessary to understand the intricate political and legal history of your dispute. I will personally handle your case from start to finish, ensuring you have a dedicated advocate who is fully invested in your fight.
Navigating Parallel Legal and Political Battles
I understand that your criminal case is not happening in a vacuum. It is directly tied to an underlying political or civil battle. My strategy will be to coordinate your criminal defense with your goals in that parallel fight. I will work to resolve the criminal case in a way that best positions you to continue your fight in the proper venue, whether that’s in civil court or at the ballot box.
Arguing Good-Faith and Lack of Criminal Intent
The core of your defense is your state of mind. I have extensive experience in cases that hinge on proving a client’s intent. I know how to gather the evidence—emails, meeting minutes, legal advice—and weave it into a compelling narrative that shows you were acting in good faith, not with a criminal heart.
Challenging the Misuse of Criminal Law
I am not afraid to stand up to a prosecutor and argue that they are misusing their power. We will make it clear to the judge that the criminal court is the wrong place to settle a political dispute. By filing aggressive motions to dismiss, we can challenge the very legitimacy of the state’s case against you and fight to have this matter moved out of the criminal system altogether. Your fight is a matter of principle, and you need a lawyer who will defend it as such.