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2005 Mont. Dist. LEXIS 1445,*

CITY OF MISSOULA, Plaintiff, vs. LESLIE VENETZ, Defendant.

Cause No. DC-05-177

FOURTH JUDICIAL DISTRICT COURT OF MONTANA, MISSOULA COUNTY

2005 Mont. Dist. LEXIS 1445

October 31, 2005, Decided

JUDGES:    [*1]  DOUGLAS G. HARKIN, District Judge.

OPINION BY:   DOUGLAS G. HARKIN

OPINION  

Department No. 4

ORDER OF REMAND AND MEMORANDUM

This matter comes before the Court upon City of Missoula's appeal of the Municipal Court's March 25, 2005 order of dismissal of the offense of false swearing. The parties have fully briefed the appeal and the matter is deemed submitted and ready for ruling.

ORDER

The City's appeal of the Municipal Court order dated March 25, 2005 is deemed premature and is DENIED.

The matter is HEREBY REMANDED to the Municipal Court for further proceedings.

MEMORANDUM

I. PROCEDURAL BACKGROUND

In the underlying action in the Municipal Court, the Defendant filed a motion to dismiss alleging the following facts:

On September 20, 2004, Ms. Venetz was in a Pontiac headed eastbound on Garfield Street in Missoula and had stopped for a stop sign at Brooks Street. Brooks Street is a four-lane road. Ms. Venetz intended to make a left hand turn onto northbound Brooks. Traffic on southbound Brooks Street had backed up behind a light and a motorist in the southbound, outside lane of Brooks yielded and made space for Ms. Venetz  [*2]  to turn. The other motorist then motioned for Ms. Venetz to make her turn as it was then safe to do so. Using a turn signal, Ms. Venetz then proceeded cautiously to make her left hand turn onto northbound Brooks. While Ms. Venetz made her turn, two cars passed uneventfully in the outside lane.

Meanwhile, Officer Brenner was in a Missoula County Sheriff's Department vehicle headed southbound in the inside lane on Brooks Street at a speed greatly in excess of the speed limit. Officer Brenner's emergency patrol lights were not activated and Officer Brenner had no legal reason to be traveling so fast. Ms. Venetz's vehicle had pulled out onto Brooks to make her left-hand turn. As Ms. Venetz's vehicle pulled into the inside lane of southbound Brooks, and after the two other vehicles passed in the outer lane, Officer Brenner's vehicle came speeding through the intersection far in excess of Brook's speed limit of 35 m.p.h. Only Ms. Venetz's careful driving enabled her to avoid Officer Brenner's oncoming collision with her vehicle, but Officer Brenner (traveling at such a high rate of speed) slammed on his brakes. Officer Brenner lost control of his vehicle and fish tailed. In its out-of-control  [*3]  swing, the back passenger side of Officer Brenner's vehicle slammed into the front of Ms. Venetz's car.

Although Ms. Venetz suffered serious injuries to her back and neck in the collision requiring treatment to this day, neither Officer Brenner, a sheriff's deputy, nor the Missoula police officers who arrived on scene to investigate checked whether Ms. Venetz had been injured. The officers at the scene immediately sought to put all the blame of this accident on Ms. Venetz without properly inquiring into the facts. When Ms. Venetz explained that Officer Brenner had been speeding, Officer Brenner's Sheriff Department Supervisor, who had by then also come on the scene, curtly told Ms. Venetz: "It doesn't matter." In the end, a police officer of Missoula's City Police Department cited Ms. Venetz for "failing to yield the right of way after a stop sign." (in violation of Section 61-8-342, MCA). Officer Brenner was never cited, nor questioned about his high rate of speed and careless driving before the collision. This case is a situation where a sheriff's deputy lost control of his vehicle because he was speeding and then the Missoula City Police Department blamed  [*4]  Ms. Venetz in order to protect one of its own.

Ms. Venetz filed her affidavit in support of the above allegations of fact.

Thereafter, on January 7, 2005, Deputy City Attorney filed an additional charge against the Defendant for false swearing in violation of Section 45-7-202, MCA based upon the above affidavit filed in support of her motion to dismiss.

Defendant filed a second motion to dismiss the false swearing charge, arguing:

1. The City failed to give Defendant a plain, concise, and definite statement of the offense as required by Section 46-11-401, MCA and due process of law.

2. There is insufficient evidence to support the charge that Defendant made a false statement when she does believe her statements were true. Defendant contends the mere fact that two or more parties experienced the same situation report it differently does not prove either is knowingly lying. State v. Jackson (1930), 88 Mont. 420, 293 P. 309.

A hearing on the motion was conducted on March 14, 2005. In an order issued March 25, 2005, Municipal Court Judge, Don Louden, dismissed the false  [*5]  swearing charge.

On May 2, 2005, the City of Missoula appealed the Municipal Court's order of March 25, 2005.

II. MUNICIPAL COURT'S DECISION ON DEFENDANT'S MOTION TO DISMISS

The City of Missoula contends that it may appeal, pursuant to Section 46-20103(2), MCA, the dismissal of the added charge for false swearing. The City argues the dismissal was "an abuse of the Municipal Court's discretion." The City contends the Defendant's affidavit was "self serving" and completely at odds with the statements by Officer Brenner, Barsotti, and Weber.

The City argues the Municipal Court's ruling was based on a theory of selective prosecution and Judge Louden lacked jurisdiction to rule on an issue that was not presented by the parties. The City argues the Municipal Court dismissed a charged offense that should have been determined at trial. State v. Cole (1977), 174 Mont. 380, 571 P.2d 87.

In response, Defendant argues: (1) the appeal is premature and should be dismissed, as the Montana Supreme Court does not favor interlocutory appeals (In Re Killpack, 2004 MT 55, 320 Mont. 186, 87 P.3d 393); (2) the appeal should  [*6]  be dismissed because the City charged Defendant with actions that are not criminal under Montana law.

The City of Missoula's authority for filing the pending appeal is pursuant to Section 46-20-103, MCA.

Section 46-20-103, MCA provides:

(1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.

(2) The state may appeal from any court order or judgment the substantive effect of which results in:

a. dismissing a case;

b. modifying or changing the verdict as provided in 46-16-702(3)(c);

c. granting a new trial;

d. quashing an arrest or search warrant;

e. suppressing evidence;

f. suppressing a confession or admission;

g. granting or denying change of venue; or

h. imposing a sentence that is contrary to law.

The effect of the Municipal Court's order of March 25, 2005 was dismissal of the false swearing charge.

Defendant argues the appeal is premature based upon the fact that there were two tickets to be tried in this case, not just the ticket for the charge of false swearing. Furthermore, Defendant argues neither Section 46-20-103, MCA  [*7]  nor Section 3-6-110, MCA authorize use of interlocutory appeals. Defendant argues the Montana Supreme Court does not favor interlocutory appeals, citing a civil action entitled In Re Killpack 2004 MT 55, 320 Mont. 186, 87 P.3d 393.

The Montana Supreme Court holds that statutes granting the right of appeal to the State of Montana in criminal actions must be strictly construed and limited to the instances mentioned. State v. Sanchez (1980), 187 Mont. 434, 610 P.2d 162. Section 4620-103, MCA provides specific instances where the State may appeal interlocutory orders, such as those where the court quashes an arrest or search warrant, suppresses evidence, suppresses a confession or admission, or grants or denies change of venue. However, if this Court "strictly construes" the provisions of Section 46-20-103(2)(a), MCA, the basis for the appeal in this case, it is clear the appeal is premature, as the Municipal Court has not "dismissed the case," but has dismissed one of the charges in the case. Accordingly, this appeal is denied.

Based upon the foregoing, the matter is REMANDED  [*8]  for further proceedings.

DATED this 31st day of October, 2005.

DOUGLAS G. HARKIN District Judge

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