No. 1 3 6 4 0
I N THE SUPREME COURT OF THE STATE O F MONTANA
1976
STATE ex r e l . , JOHN S. FORSYTHE,
Relator,
D I S T R I C T JUDGE ALFRED B. COATE,
Judge of t h e S i x t e e n t h J u d i c i a l
D i s t r i c t , C o u n t y of R o s e b u d ,
Respondent.
O R I G I N A L PROCEEDING :
C o u n s e l of R e c o r d :
For R e l a t o r :
L e e O v e r f e l t argued, B i l l i n g s , Montana
Kurth, Felt, Speare and L a L o n d e , B i l l i n g s ,
Montana
W i l l i a m 2. Speare a r g u e d , B i l l i n g s , M o n t a n a
For R e s p o n d e n t :
B r u c e B e c k e r argued, Wolf P o i n t , M o n t a n a
R o b e r t R i l e y argued, M i s s o u l a , M o n t a n a
H. J . P i n s o n e a u l t , M i s s o u l a , M o n t a n a
Submitted: December 1 6 , 1976
DecidedDE~ 3d 1976
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an original proceeding in which relator seeks
an appropriate writ to require the respondent court to dismiss
an indictment filed therein on or about March 19, 1976.
A little background of the situation is to be found in
State ex rel. Forsythe vs. District Judge Alfred B. Coate,
Mont. , 546 P.2d 1060, 33 St.Rep. 310, which was an original
proceeding wherein relator sought a writ of prohibition to dis-
qualify the district judge, being the respondent in the instant
case, from sitting upon a grand jury investigation and to have
a special prosecutor appointed from outside the judicial district
to assist the grand jury. We declined to assume jurisdiction on
the first matter, but did on the second and we denied the relief
sought and dismissed the petition.
A few months later Forsythe was again in this Court as
relator in another original proceeding with the same district
judge as respondent wherein he sought a writ of supervisory con-
trol to have himself reinstated as county attorney. The situation
there was that on May 19, 1976, the respondent district judge
suspended Forsythe as county attorney following the return of
an indictment charging relator with violating his duty to dili-
gently prosecute public offenses by dismissing charges against
four persons who were accused of participating in an illegal
card game.
In the course of our opinion, State ex rel. Forsythe v.
District Judge Alfred B. Coate, Mont . , 524 P.2d 60, 62,
33 St.Rep. 671, we noted that the district court's own records
showed that it had granted the county attorney's motion to dis-
miss the charges and we stated:
"The district court's own records show that it
granted relator's motion to dismiss the charges.
When a motion to dismiss criminal charges is
made by the county attorney and approved by the
district court, the stamp of judicial approval
overcomes the statutory presumption leaving no
room for discretion. Suspension, absent any
indication of deception or fraud upon the court,
is inappropriate.
"We also note that section 94-7-401, R.C.M. 1947,
'Official Misconduct', under subsections (l)(a)
and (4), provides for a discretionary suspension.
Here, again the Court's own records show judicial
approval of the prosecutor's actions.
"Therefore, it is ordered that relator, John S.
Forsythe, shall receive all back pay to May 19,
1976, and be reinstated in his office pending
final determination of the charges against him."
On October 1, 1976, Forsythe moved to dismiss the
indictment, alleging, among other things, " * * * that the charge
of failure to diligently prosecute was known to be contrary to
the facts and court records at the time of presentation to the
court". This motion was denied by Judge Coate on December 7,
1976, such order providing: "Defendant's motion to dismiss is
hereby denied; the opinion will be filed by December 21, 1976."
On December 13, 1976, Forsythe, as relator, filed his
original petition in this Court, again naming Judge Coate as
respondent, seeking an appropriate writ to require the respondent
district judge to dismiss the indictment with prejudice. Counsel
was heard ex parte and following the conclusion of the hearing
this Court issued an order calling for an adversary hearing on
December 16, 1976.
On December 14, 1976, respondent district judge filed
with this Court copy of findings of fact, conclusions of law and
judgment which were dated December 8, 1976. Therein relator's
motion to dismiss the indictment was denied and it was ordered
that judgment be entered accordingly. The district court noted
that this Court was satisfied as to the sufficiency of the in-
dictment because we had reinstated relator as county attorney
"pending final determination of the charges against him,"
the judge believing that the test of the sufficiency had been
met. The situation was that counsel upon the original appear-
ance was not sure whether there were other charges pending and
this cautionary language was placed in our opinion for that
reason. We gave no consideration to the sufficiency of the
indictment nor should any be inferred.
Respondent, in response to our order of December 14,
1976, has filed an answer and motion to quash. Counsel for
all parties appeared at the adversary hearing and were heard in
oral presentation and the matter was taken under advisement.
Relator seeks to dismiss the indictment, which charges
him with the crime of official misconduct, a misdemeanor under
section 94-7-401, R.C.M. 1947, which was set forth in the follow-
ing language:
"That on or about October 19, 1975, CLYDE V.
THOMPSON, JOE OPP, LESTER LEISCHNER, and
MARJORIE DOBSON were each arrested and each
charged with the crime of participating in an
unauthorized card game, contrary to Section
62-703, R.C.M. 1947;
"That on December 11, 1975, the said John S.
Forsythe dismissed all the said charges of partici-
pating in an unauthorized card game;
"That Section 94-8-414, R.C.M., 1947 requires
the County Attorney to diligently prosecute
all offenders of gambling statutes; that the
dismissals were contrary to Section 94-8-414,
R.C.M., 1947; that by dismissing the said charges
John S. Forsythe purposely or negligently failed
to perform a duty as required by Section 94-8-414,
R.C.M., 1947, contrary to the form, force, and
effect of Section 94-7-401, R.C.M., 1947 OFFICIAL
MISCONDUCT, a misdemeanor and against the peace
and dignity of the State a£ Montana."
We find it unnecessary to restate the detailed factual
situation surrounding these dismissals as set forth in our opinion
in State ex rel. Forsythe v. District Judge Alfred B. Coate,
Mont. , '522 P.2d 60, 33 St-Rep. 671.
An examination of the statute governing dismissal of a
criminal charge clearly establishes that the district court,
and not the county attorney, has the authority to dismiss.
Section 95-1703, R.C.M. 1947, states:
"Dismissal on motion of court or application
of attorney prosecuting. The court may, either
on its own motion or upon the application of the
attorney prosecuting, and in furtherance of jus-
tice, order an action, complaint, information,
or indictment to be dismissed. The reasons of
the dismissal must be set forth in an order
entered upon the minutes. (Emphasis added.)
Further evidence of the district court's authority to
have the final say as to whether a prosecution must be completed,
once started, is found in section 95-1303, R.C.M. 1947:
"The county attorney not filing an information.
It the county attorney determines an information
ought not to be filed after the defendant has been
held to answer following a preliminary examination
or waiver thereof, or after leave to file has been
granted, he must within thirty (30) days make,
subscribe, and file with the clerk of court a
statement in writing containing his reasons in
fact and in law for not filing an information.
The court must examine such statements together with
the evidence filed in the case, and if upon such
examination, the court is not satisfied with the
statement, the county attorney shall be directed
and required by the court to file the proper in-
formation and bring the case to trial."
The record of the dismissals, as set forth above, makes
it clear that the district court, and not the relator, dismissed
the charges. The only action of the relator was the motion to
dismiss. Furthermore, the district court was fully aware of the
facts and circumstances surrounding the motion to dismiss when
such was presented and granted.
Under these circumstances, the relator could be prose-
cuted for official misconduct only if he had fraudulently mis-
represented the circumstances and facts surrounding the motion
to dismiss in order to gain the district court's dismissal.
Absent such a showing, we find that it would be unreasonable to
hold a prosecutor criminally responsible for dismissal of a
criminal matter when the district court gives its stamp of
judicial approval and actually accomplishes the dismissal through
its order.
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The indictment in question does not charge the relator
with deception or fraud upon the district court to gain the
dismissals and in no way apprises the relator that such is the
basis of the criminal charge.
For these reasons, the motion to quash is denied and we
grant the writ of supervisory control sought by relator and
direct the respondent district court to dismiss the indictment
against relator with prejudice,
Chief Justice
We concur:
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