by Dale Chappell

Overruling its precedent, the Supreme Court of Montana held that venue is not a jurisdictional element and may be waived by a defendant. However, it also confirmed that the State is still required to prove jurisdiction beyond a reasonable doubt, which is not waivable.

Ryan Frankforter was convicted of two counts of partner or family member assault (“PFMA”), one for an assault that occurred in Helena, and the other for an earlier alleged assault the location of which was in dispute. Frankforter appealed, arguing that the prosecution failed to prove beyond a reasonable doubt jurisdiction and venue of the second PFMA. The City argued that the Montana Supreme Court’s prior case on the issue should be overruled, and that Frankforter waived venue by failing to object. The Court agreed with both parties.

The Court explained that jurisdiction and venue are not interchangeable. Jurisdiction is a court’s power to decide a case and may not be waived. On the other hand, venue refers to where a case may be heard; it is a constitutional right that the defendant may waive.

Before 1967, the law in Montana was that venue was a “jurisdictional fact” the prosecution had to prove beyond a reasonable doubt. But that law changed when the Montana Criminal Law Commission in 1967 revised the criminal code to bring venue and jurisdiction in criminal cases into agreement with civil cases.

The Court acknowledged the problem is that the Supreme Court continued to apply its pre-1967 precedent, requiring the prosecution to prove venue beyond a reasonable doubt, “just as any other material element.” State v. Johnson, 848 P.2d 496 (Mont. 1993). The Court announced that “we conclude venue is not an essential ‘jurisdictional fact’ that must be proven at trial.” Furthermore, it expressly overruled its case law “to the extent they confuse venue with jurisdiction … or hold venue is a jurisdictional fact….” Finally, the Court instructed “a defendant waives his objection to the county in which a charge is filed [venue] if he fails to raise it before the first witness is sworn at trial.”

Turning to the present case, since Frankforter did not object to venue prior to the first witness was sworn at this trial, he waived the improper venue issue, the Court held.

The Court was not done. “A defendant may not waive nor stipulate to a court’s jurisdiction over his criminal case,” it explained, adding, “Jurisdiction addresses the court’s authority to adjudicate the proceeding.” As such, the prosecution must prove that the trial court has jurisdiction over the case.

The Helena Municipal Court in Lewis and Clark County has jurisdiction only over offenses committed within the county. The prosecution failed to offer any evidence of where the second PFMA occurred, and the record is silent on the fact, the Court said, holding that the Municipal Court did not have jurisdiction to decide the second PFMA. Consequently, the Court concluded Frankforter’s conviction on that charge cannot stand.

Accordingly, the Court reversed Frankforter’s second PFMA conviction for lack of jurisdiction. See: City of Helena v. Frankforter, 2018 MT 193 (2018). 

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