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Jacobsen v. State4/28/1999
the District Court failed to analyze the facts of this case under the guidelines set forth in two United States Supreme Court opinions, Buckley v. Fitzsimmons (1993), 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209, and Burns v. Reed (1991), 500 U.S. 478, 111 S. Ct. 1934, 114 L. Ed. 2d. 547.
. The key question here is whether Heffron's investigatory activities were something other than prosecutorial or quasi-prosecutorial in nature. Cf. Kelman v. Losleben (1995), 271 Mont. 156, 159, 894 P.2d 955, 957; Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 6-7, 878 P.2d 870, 873.
. Jacobsen argues that Heffron's involvement in the investigative phase of the case was something other than prosecutorial or quasi-prosecutorial in nature. He asserts that Heffron became too involved with investigatorial functions when he directed the investigation, gathered evidence, interviewed witnesses, and extended limited immunity to Jacobsen's common law wife, Gayle Schumacher, in exchange for her testimony. Jacobsen also contends that Heffron pursued a prosecution against him even though Heffron knew there was not sufficient evidence to convict him.
. Pursuant to the terms of Resolution 1196, Heffron was appointed to "assist in the investigation and prosecution" of Jacobsen. In its brief in support of summary judgment to the District Court, Butte-Silver Bow explained that the county commissioners simply relayed the information they had against Jacobsen to Heffron, who had the authority to exercise his sole discretion to determine what matters to investigate, whether to prosecute, and what charges would be filed based on the information his investigation uncovered. Similarly, the State argued that its investigators, Skuletich and Scott, simply reported the results of their investigation to Heffron who made the decision whether to prosecute.
. The respondents attack the sufficiency of Jacobsen's supporting materials in opposition to their motions for summary judgment. Butte-Silver Bow argues that Jacobsen failed to comply with Rule 56(e), M.R.Civ.P., which provides that a party opposing summary judgment may not rest upon mere allegations or denials of his claim, but must respond with affidavits setting forth specific facts showing that there is a genuine issue for trial. Butte-Silver Bow contends that none of Jacobsen's exhibits submitted in opposition to summary judgment were properly authenticated or otherwise admissible.
. The State makes similar arguments. In addition, the State points out that an affidavit of Jacobsen's counsel with attached documents from Heffron's files does not comport with Rule 56. The State directs us to the requirement in Rule 56 that the affiant must be a person through whom the exhibits could be admitted into evidence.
. Our review of the exhibits discloses that Jacobsen did not sufficiently respond to the motions for summary judgment. Many of his exhibits were not properly authenticated or were attached to an affidavit given by someone without knowledge and not competent to testify as to the facts. With regard to the attorney's affidavit of Jacobsen's counsel, it was likewise insufficient. In Morales v. Tuomi (1985), 214 Mont. 419, 424, 693 P.2d 532, 535, we stated that "an attorney's affidavit 'is admissible only to prove facts that are within his personal knowledge and to which he is competent to testify.'" (Quoting 10A Wright, Miller and Kane, Federal Practice and Procedure ยง 2738 (1983).)
. We note that Jacobsen does not respond to these procedural arguments on appeal. In his opening brief, Jacobsen simply states, without support, that there is sufficient documentation as to show that Heffron actively in
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