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M O N TA N A FIRST JUDICIAL DISTRICT COURT
L E W I S AND C L A R K COUNTY
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THE COMMISSIONER OF POLITICAL
PRACTICES FOR THE STATE OF
MONTANA, through JO N AT I M N R.
MOTL, acting in his official capacity as
the Commissioner of Political Practices,
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V.
ARTHUR “ART” WITTICH,
Defendant, Counter-Claimant, and
Third-Party Plaintiff,
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v.
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STEVE BULLOCK, BRUCE TUTVEDT,
JIM MURRY, JONATHAN MOTL, and
JOHN DOES 1-20,
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ORDER ON DEFENDANT’S
M O T I O N TO DISMISS
Plaintiff and Counter-Claim
Defendant,
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Cause No. BDV-2014-251
Third-Party Defendants.
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Before the Court is Defendant Arthur Wittich’s motion to dismiss for
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lack of subject matter jurisdiction of this suit filed by the Commissioner of Political
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Practices.
BACKGROUND
Wittich w o n the 2010 Republican primary election for Montana Senate
District 35. At the time, Senate District 35 was entirely contained within Gallatin
County.
In September 2010, Billings legislative candidate Debra Bonogofsky
filed a complaint with the Commissioner of Political Practices against her opponent in
the Republican primary, Dan Kennedy, alleging violations of campaign practice laws,
including improper coordination with Western Tradition Partnership.’ Upon evidence
gathered in that investigation, Bonogofsky expanded her complaint to include other
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candidates alleged to have improperly coordinated with Western Tradition Partnership,
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including Wittich.
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The Commissioner investigated the complaint and issued a sufficiency
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decision finding that enough evidence existed to file suit against Wittich for violation
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of campaign practice laws, including failure to report or disclose contributions,
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acceptance of corporate contributions, and failure to maintain or produce campaign
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finance records.
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Statute requires that the Commissioner notify the county attorney of the
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county where the violations allegedly occurred and arrange to transmit to them all
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relevant information. If the County attorney does not file suit within thirty days, the
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case returns to the Commissioner, who may then file suit. Mont. Code Ann. §
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13-37-1240). The Commissioner of Political Practices is located in Helena, within
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Lewis and Clark County. Here, the Commissioner forwarded the Wittich sufficiency
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decision to the Lewis and Clark County Attorney, who declined the case, leading the
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Commissioner to file this suit in Lewis and Clark County.
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1 Formerly American Tradition Partnership
ORDER 0N DEFENDANT’S MOTION TO DISMISS - page 2
ANALYSIS
As a preliminary matter, Wittich’s attorney offered a dismissal hearing
brief at the hearing on this motion. In that hearing there was some dispute asto
whether materials outside the pleadings could be considered under a Montana Rule of
Civil Procedure 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The
Montana Supreme Court held that “matters outside the pleadings can be considered on
a motion to dismiss for lack of jurisdiction.” TC Fuel Components, LLC v. Mont.
Eleventh Judicial Dist. Court, 374 Mont. 540 (2014); see Capitol Indus.-EMI, Inc. v.
Bennett, 681 F.2d 1107, 1118 n. 29 (9th Cir. 1982); accord Mont. R. Civ. P. 12(d).
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Therefore the materials in Wittich’s dismissal hearing brief will be accepted for
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consideration.
Wittich argues that all alleged violations would have been committed
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entirely within Gallatin County, making its county attorney the only proper recipient of
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the sufficiency decision. Consequently, Wittich argues, the Commissioner’s failure to
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provide the Gallatin County Attorney anopportunity to prosecute the case violates
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Montana Code Annotated § 13-37-124, thereby vitiating this Court’s subject matter
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jurisdiction.
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Montana Code Annotated § 13-37-1240) provides:
[T]he commissioner shall notify the county attorney of the county in
which the alleged violation occurred and shall arrange to transmit to the
county attomey all information relevant to the alleged violation. If the
county attorney fails to initiate the appropriate civil or criminal action
within 30 days after receiving notification of the alleged violation, the
commissioner may then initiate the appropriate legal action.
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The statute is silent asto where the Commissioner should offer his sufficiency decision
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in the event of alleged violations in multiple counties, and Wittich does not argue that
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the Commissioner must prioritize one county over the other in such a case.
ORDER ON DEFENDANT’S MOTION TO DISMISS - page 3
The complaint alleges a number of violations, some of which appear
entirely confined to Gallatin County.2 In dispute is whether Wittich’s alleged failure to
accurately report campaign finances was committed in Gallatin or Lewis and Clark
County.
Wittich argues that any alleged violation would have occured upon his
signing the report in Gallatin County, while the Commissioner argues that the violation
only ripens when the report is filed at the Commissioner’s office in Lewis and Clark
County.
Wittich cites to State v. Matthews, 183 Mont. 405, 600 P.2d 188 (1979),
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for the proposition that the Commissioner must offer the case to the county attorney for
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the county in which the election is held. However, that case only dealt with the
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sufficiency of the allegations in the charging documents and does not even mention the
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nature of the alleged violation, let alone where it was committed. The other case to
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which Wittich cites, Parisot v. Argenbright, 1997 Mont. Dist LEXIS 307, is similarly
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silent asto where the offense was alleged to occur, offering the Court no insight into
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which county is the proper recipient of a Sufficiency decision.
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The Court finds that the alleged reporting offense in this case could only
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have ripened upon receipt of the document by the Commissioner. For one, it makes no
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sense to conclude that one can make an improper report if the act of reporting has not
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yet occurred. Moreover, the approach argued by Wittich would lead to absurd and
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unworkable results. If the alleged violation ripened upon mere completion of the
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report, candidates could not only easily shop for the most favorable venue in Montana
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(including counties where neither the election nor the Commissioner’s office are
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located), but could also immunize themselves by simply signing their reports on a
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2 i.e., acceptance of corporate contributions and failure to keep records.
ORDER 0N DEFENDANT’S M O T I O N TO DISMISS - page 4
quick day trip to Williston, North Dakota, or better yet, Lethbridge, Alberta. This
clearly makes no sense.
As noted above, there are certain portions of the complaint that allege
violations which occurred in Gallatin County. However, the complaint also alleges
violations occurring in Lewis and Clark County. For example, paragraph 11 alleges
that campaign finance reporting acts or omissions occurred in Lewis and Clark County.
Pargraphs 31, 32, 41, and 42 allege violations asto the filing or reporting of campaign
documents. These filings and reportings occurred, if at all, in Lewis and Clark County.
Thus, it may safely be assumed that jurisdiction arguably exists in both Gallatin and
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Lewis and Clark Counties. Such being the case, the Court concludes that it is
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appropriate for the Commissioner to proceed in either county.
CONCLUSION
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For the foregoing reasons, Wittich’s motion to dismiss is DENIED.
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DATED this fly
of July 2014.
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l“
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\\
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p / ‘ fl fl d ‑
_/ JEFFREY M. SHERLOCK
District/Court Judge
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pcs:
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Jonathan R. Motl/Jaime MacNaughton
Carrie R. Wassserburger
Arthur V. Wittich/Emily S. Stark
Curt Drake/Michael A. Kauffman/Amy K. Burns
W. Anderson Forsythe
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T/J'MS/conunissioner political practices v winich 0rd mot dismiss wpd
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ORDER ON DEFENDANT’S M O T I O N TO DISMISS - page 5

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