No. 14776
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Appellant,
DONALD R. MATTHEWS,
Defendant and Respondent.
Appeal from: District Court of the Fourth Judicial District,
Honorable JacK L, Green, Judge presiding.
Counsel of Record:
For Appellant:
Jack Lowe, Helena, Montana
For Respondent :
D. R. Matthews, Missoula, Montana
Anthony F. Keast, Missoula, Montana
Submitted on Briefs: July 16, 1979
Decided : jEp 2 1979
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
The State of Montana filed an information in District
Court charging respondent Donald R Matthews with two criminal
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offenses. The District Court granted respondent's motion to
dismiss. From that order the State appeals.
On January 25, 1979, attorneys working for the Commis-
sioner of Campaign Finances and Practices brought criminal
charges under the Campaign Finances and Practices Act (MCPA),
sections 13-35-101 through 13-37-231, MCA, against Donald R.
Matthews, respondent. Based upon an affidavit, leave to file
an information was granted by the District Court and an arraign-
ment date was set. The affidavit did not set forth the facts
that the State had offered the Missoula County Attorney an oppor-
tunity to prosecute the case and that he had waived his right to
do so as required by section 13-37-124, MCA. Appellant had,
however, declined to prosecute the respondent as evidenced by an
affidavit of the Missoula County Attorney.
Respondent filed several motions to dismiss and both
parties filed briefs. Acting upon these motions, another district
judge in the district in which the information was filed, dismissed
the charge. The precise language of this ruling was as follows:
"Defendant's Motion to Dismiss for Lack of Juris-
diction is granted for the reason that the Affi-
davit for Leave to File an Information does not
show that the requirements of section 13-37-124
MCA have been met."
Appellant orally moved the court for leave to amend the
affidavit but this was refused. The defendant did not enter a
plea. This appeal was brought as refiling in District Court
would constitute double jeopardy under the provisions of section
46-11-503 (2), MCA.
The issues presented on appeal are:
1. In an action brought under the MCPA does the failure
to recite the fact that the case was first offered to the county
attorney in the affidavit deprive the District Court of juris-
diction?
2. Does one judge of a District Court have authority to
dismiss a criminal action where another judge of coordinate
jurisdiction has granted leave to file an information?
Section 13-37-111, MCA, gives the Commissioner of Cam-
paign Finances and Practices (Commissioner) the responsibility
of enforcing the state's election laws. This responsibility is
to be exercised in conjunction with the county attorneys of the
state. This includes a procedure whereby in any prosecution under
the MCPA the county attorney must be notified and given the oppor-
tunity to initiate the appropriate action. If the county attorney
fails to initiate any action within 30 days or if he waives his
right to prosecute, the Commissioner may initiate the appropriate
action. Section 13-37-124, MCA.
This case was initiated by a member of the Commissioner's
sed
The methodywas by leave to file an information supported
staff.
by an affidavit. The purpose of an affidavit is to establish
probable cause. Section 46-11-201(1). There is nothing in this
statute which indicates that an affidavit must allege jurisdic-
tion. The District Court's jurisdiction in criminal matters is
granted by the Constitution of Montana. Art. VII, Section 4.
Jurisdiction is also given to the District Courts by statute in
section 46-2-201, MCA, and in this case by section 13-37-113, MCA,
which provides that all prosecutions under the MCPA must be brought
in District Court. Finally, section 46-2-101, MCA, confers juris-
diction upon state courts in general when the offense charged is
committed within the state.
While it is true that the Commissioner must offer the pros-
ecution to the county attorney in a case under the MCPA, there is
no indication in any of the above cited statutes that a failure
to recite such a fact in the State's affidavit or information
will deprive the District Court of jurisdiction. In this
case the prosecution was initiated by the information. An in-
formation must conform to the statutory outlines given in sec-
tion 46-11-401, MCA. In this case the record reveals that the
information conformed with this statute with the exception that
the information was signed by a special attorney general rather
than the county attorney. This deviation in procedure, however,
is specifically allowed by section 13-37-113, MCA.
The failure to recite the fact that the county attorney
was offered the opportunity to prosecute this case is not juris-
dictional. In State v. Logan (1970), 156 Mont. 48, 473 P.2d 833,
the county attorney failed to file a supporting affidavit for
leave to file an information as is required by section 46-11-201,
MCA. This Court held that this was not a jurisdictional defect.
156 Mont. at 54. The Court found that the record disclosed suf-
ficient facts to establish probable cause despite the absence of
the supporting affidavit. In holding that this violation of the
statute was not a jurisdictional defect this Court said, "This is
patently a procedural matter, not a substantive issue involving
the jurisdiction of the court." 156 Mont. at 55, 473 P.2d at 837.
In the instant case the respondent is not alleging that
the State violated its duty by not offering the prosecution to
the county attorney. Rather, the respondent is saying that the
failure to recite such a fact is a jurisdictional defect. Logan
indicates that where a procedural matter is involved which does
not involve a substantive issue the District Court still has juris-
diction. It is apparent that the instant case involves a proce-
dural matter which is not substantive.
The Logan rationale was followed in the case of State v.
Emerson (1976), 169 Mont. 284, 546 P.2d 509. In Emerson the
District Judge allowed an amended application and affidavit to be
filed to remedy omissions in the original affidavit. This Court
said :
"Considering the affidavit accompanying the
initial application for leave to file an Infor-
mation and the amendment allowed by the district
court, we find no error. Admittedly section 95-
1301, R.C.M. 1947 [now section 46-11-201, MCA] re-
quiring that the affidavit establish probable cause
to believe that the offense has been committed
was violated by the original affidavit. This,
however, is patently a procedural matter, not a
substantive issue involving the jurisdiction of
the court. State v. Logan, 156 Mont. 48, 55, 473
P.2d 833." 169 Mont. at 289, 546 P.2d at 511.
In addition to these cases, there is also statutory auth-
ority to the effect that a technical defect in a charge will not
require a dismissal. Section 46-11-403(3), MCA states: "No
charge shall be dismissed because of a formal defect which does
not tend to prejudice a substantial right of a defendant."
Respondent does not argue that any of his substantial rights
have been prejudiced. The affidavit and information fully inform
him of the offense with which he is being charged. He will have
his chance to defend himself at any eventual hearing or trial on
this matter. None of respondent's substantial rights have been
prejudiced in this matter. Here it is clear that there was no de-
fect which would deprive the District Court of jurisdiction.
Having decided the first issue in this manner it is unneces-
sary to discuss the second issue as that determination could not
affect the result in this case.
Reversed and remanded.
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Chief Justice