Selective Prosecution for Catching Walleye Out of Season Not Proven

State v. Fellegy, Minn.Ct.App., 7/11/2012.  Two days before the walleye fishing opener in May 2010 Mr. Fellegy (a) caught a walleye from Lake Mille Lacs, and (b) bragged about in on line.  The DNR happened to be reading Mr. Fellegy’s bragging – as he intended - and referred the matter to the Aitken county attorney.  The Aitkin county attorney charged Mr. Fellegy with catching a walleye out of season.  Mr. Fellegy complained that this was selective enforcement in violation of his right to equal protection under the law.  More specifically, Mr. Fellegy, appearing without counsel, initially maintained that he should be able to catch walleye the same as members of the Ojibwe Indian Tribe:

[The charge must be dismissed] based on the fact that during the same time frame in Minnesota and Wisconsin citizens harvested approximately 65 tons of walleyes from the same lake. In the end, solely based on skin color and ethnic origin this charge discriminates against me and should be dismissed; and if not dismissed, I should be found not guilty based on the protection of such discrimination.

Once retaining counsel, counsel made a bit more nuanced argument that the problem with Mr. Fellegy’s prosecution was that over in Beltrami County Native Americans had also caught fish before the opener on Lake Bemidji and the county attorney there did nothing about it.  The trial court treated these separate, different assertions as two different motions; on the former, Mr. Fellegy had waived it by not submitting the memorandum that had been requested, and he lost the later because his second motion was untimely and even if not, had no merit.

The court of appeals says that the trial court had not abused its discretion by bouncing Mr. Fellegy’s first motion, based entirely on race, because he had not submitted the requested memorandum.  Even on the merits, however, he still cannot prevail.  The court points out that the Ojibwe have treaty rights to take fish from Lake Mille Lacs whereas he does not.  He is not, therefore, “similarly situated” to the Ojibwe when fishing that lake.  That one of the requirements to assert a valid selective prosecution claim.

On the second motion, the appellate court again says that the trial court did not abuse its discretion by concluding that it was untimely.  Even if not, Mr. Fellegy did not establish how the Beltrami county attorney’s decision not to prosecute the fish catch there established a claim of selective prosecution in Aitkin county:

In short, his claim of selective enforcement requires proof of the decisionmaker’s discriminatory intent, and the intent behind one prosecutor’s action does not, without more, demonstrate the intent behind another’s inaction.