*1 INQUIRY, In the Matter of SECRET GRAND JOHN JURY THROUGH THIRTY-NINE. AND DOES THIRTY JANE 13437. No. July 1976. Submitted Aug. Decided 1976. rehearing Aug. Denied 1976.
Robert negative position, J. respondent. delivered the opinion C. HARRISON
MR. JUSTICE JOHN the court. Bennett, R. district of Hon. Gordon presiding
This a petition Clark County grand jury, in of the Lewis and charge judge on from this Court declaratory in effect requesting judgment of the Work- certain issues raised in grand jury proceedings Division, of Labor and In- Department men’s Compensation State Montana. dustry,
Three issues are presented:
1) over grand jury district court have What does the authority subpoenas?
2) examine the has the district court What authority instructions, to determine if its of the grand jury proceedings to? are adhered being upon empanelment given 3) What the district court to whether has determine authority such as are adhering grand jury, investigators, agents themselves as attaches of the law or conducting appropriately court? was for oral before this Court on petition set argument 7, 1976, with several other matters out of arising July together Several counsel for this grand jury investigation. argued while the district court’s others accept petition, argued Court had this no issue an authority advisory opinion, was there before the Court which to make a deter- nothing upon mination, either or control. by by appeal supervisory
With this Court has no argument jurisdiction, instance, we cannot first agree. In the Ben petition Judge nett is not one for an advisory opinion. Advisory are opinions those issued court in opinions to a request from response other some branch of as the such or government, legislative executive, asking information matters of law. 16 concerning Constitutional Law 150. here We are involved with § C.J.S. issues justiciable from bona fide controversies in the arising district court.
We consider Bennett’s as questions justiciable con troversies Rule Montana Rules Civil contemplated Proce First, a dure. justiciable controversy requires have parties theoretical, existing as genuine, distinguished from rights Second, interests. must be one controversy which the upon of the court judgment may as effectively operate, distinguished from a debate or admini argument invoking purely political, strative, Third, or academic conclusion. it philosophical must be a of which controversy determination will have judicial the effect of a final law or decree judgment equity upon *4 status or of one or more of the rights, legal relationships real interest, in or these be of such parties lacking an qualities overriding public moment as to constitute the legal equivalent all of them. The of this recognize decisions support this definition. See: Forty-Second v. Assembly Legislative
358 416, 330; 420, Lennon, v. Conrad et al. 156 Mont. 481 P.2d 948; al., ex rel. et 157 Mont. 485 P.2d State Managhan 1127; bill, v. 159 Mont. P.2d Woodahl Kvaalen Gray Conservation, v. Natural Resources Montana Board 383; Anderson, v. Mont. 516 P.2d State ex rel. Irvin 513, 525 Mont. P.2d 564. Lennon, the
As under taking jurisdiction this Court stated in in Act, 93, Chap. Montana Uniform Title Declaratory Judgments 89, R.C.M.1947:
“A action is a proper proceeding declaratory judgment the issues raised in this pro- which to reach and answer legal granted A court of record Montana specifically ceeding. status, ‘to' and other relations’ power rights, legal declare (section 93-8901, R.C.M.1947) a a which ‘are affected by party (section 93-8902, R.C.M.1947) a and in which statute’ remove ‘will terminate the controversy declaratory judgment 93-8905, R.C.M.1947). (section an This is precisely uncertainty’ * * *” exists in the case. present situation that First, of the cases. we outline a brief factual setting 79-2315, enacted section In the Montana legislature R.C.M.1947, in pertinent part: which provides state, all conduct on behalf
“The shall attorney general an audit of a state offenses disclosed prosecutions public auditor. If the attorney legislative agency performed or shall fail commence shall decline such general prosecution time county within a reasonable action on offense public of the shall conduct on behalf county attorney appropriate state such prosecution.” 79-2315, the attorney direction of section
Pursuant out an an audit arising general began investigation two requested judges Division Workmen’s Compensation request This jury. district call judicial of the first for a to this Court was the attorney general applied denied and control, empanel the two judges writ directing of supervisory Court, 166 v. District rel. Woodahl In State ex grand jury. *5 780, this Court ordered the empanelment 530 P.2d Mont. and since that time the has been func- of grand in a number of indictments. resulting tioning, trial, numerous in cases to this Due to Court is- delays getting sued this order dated entitled the Matter of “In June the Workmen’s this No. Court’s Compensation Litigation”, 13410:
“It in the of recent events that the of the appearing light rights state, the defendants and the are sub- public, judiciary being and ordinated to extraneous ends and personal purposes, it “And that the Montana should appearing Court Supreme VII, act under its to Art. general supervisory powers pursuant Constitution, Sec. 2 of the Montana in order to and remedy situation, the effects of the mitigate foregoing “IT IS ORDERED:
“(1) That the of Montana and other attorney general public counsel, all defense and the district prosecutors, presiding judges in all criminal cases pending the Workmen’s involving Compen- sation investigations are directed to at a prosecutions appear Conference to be held in the of this Courtroom Supreme on June, the 21st at 2:00 day p.m.
“(2) That the Commission on Practice is directed to investi- the conduct of all gate defense public prosecutors attorneys Workmen’s pending determine Compensation litigation, whether there are violations of the Code of Professional any recommendations, and transmit the Commission Responsibility action, indicated, if including this Court in the disciplinary usual manner.
“3. That in order to further to the rights prevent injury state, the defendants and the public, judiciary pending counsel, clerks, herein Conference all their staffs provided, and attaches are ordered and directed to refrain stenographers from comment in directly indirectly any relating public way to the heretofore described. litigation
“(4) violation of this order shall the offender subject Any of court. proceedings contempt “(5) cause to be The Clerk of this Court is directed to notice a true hereof forthwith to all public given by mailing copy counsel, all district presiding judges defense prosecutors, shall Workmen’s cases. District pending Compensation judges herein the district court file the Conference bring provided. “(6) said will be for nonattendance at No excuses accepted *6 Conference.” 21st, Bennett Judge peti- on hearing
Following June this No. Court’s declaratory this Court for a judgment, tioned Under- questions. enumerated three as to the heretofore a to of a is basic as the nature grand the questions question lying specific be answered before giving which must jury proceeding, Bennett’s questions. answers to the nature of the United States discussed The Supreme Calandra, 414 in v. U.S. United States of grand jury proceedings 561, 568, 569, 338, 343, 572: 38 L.Ed.2d S.Ct. accorded wide latitude has been grand “Traditionally jury presides law. No judge into violations criminal inquire and may in secret It deliberates proceedings. monitor its may The grand jury alone the course of its inquiry. determine of witnesses testimony of evidence or compel production is andits operation generally as it considers appropriate, rules evidentiary the technical procedural unrestrained a ‘It is grand inquest, of criminal trials. conduct governing inquisition, scope with powers investigation body be narrowly by questions not to limited whose is inquiries the investigation, result of or forecasts of probable propriety be individual will found any particular doubts whether or Blair v. United accusation of crime.’ to an subject properly 468, 471, 273, 282, States, 63 L.Ed. 39 S.Ct. 250 U.S. (1919). role reflects its special grand powers
“The jury’s scope A grand jury law enforcement. fair and effective in insuring is not an proceeding adversary which or in- hearing guilt Rather, nocence of the accused is it is an ex adjudicated. parte to determine investigation whether a crime has been committed and whether criminal should be instituted proceedings against The any person. grand must be broad jury’s investigative power * * *” if its is public to be responsibility adequately discharged. is a There need for a which grave public grand jury may n conduct an unfettered and The uninterrupted investigation. has a to the grand jury responsibility public in thoroughly the matters before it. The must know that no vestigate public lead went that the uninvestigated, have confidence public may in the full and fair administration justice. full, need for a broad
Measuring
public
grand jury
investigation
harm
against any potential
to witness who has
been
it is clear the need for an
subpoenaed,
unfettered grand
What,
is much
jury
if
greater.
lost
if the
anything,
by anyone
time,
hears
evidence from a
witness
second
even if
that evidence was
conceded
be irrelevant to the grand jury’s
basic
The
investigation.
grand
conducts its
jury
investigation
secret, and its
is not adversarial.
investigation
innocence,
does not determine
it
guilt
determines if
only
*7
criminal
should be
Most of the
proceedings
begun.
witnesses
indicted,
before the
appear
will never be
grand jury
but the
grand
needs their
jury
continue its
testimony simply
investiga
to.
tion. The witnesses lose nothing by
The
testifying.
grand jury
evidence,
has a
man’s
right
every
even if it would be em
to him
v.
barrasing
personally.
408 U.S.
Branzburg Hayes,
92 S.Ct.
The constant of the witnesses who interruption grand jury by wish to the of the which call them litigate validity subpoenas
362 before the could result the grand jury, easily investigation to a halt. coming grinding
The in Calandra ex- United States logic Supreme the rule should not to grand why exclusionary apply plaining to the now with force equal questions jury proceedings applies before this Court: *
“* * the guilt Because does not grand jury finally adjudicate innocence, it has been allowed to its traditionally pursue and accusatorial functions the investigative unimpeded and restrictions criminal procedural applicable evidentiary rule before exclusionary trial. witnesses to invoke Permitting of would issues hitherto adjudication grand jury precipitate trial merits and would and reserved for the on the delay disrupt would halt the hearings grand jury Suppression proceedings. and necessitate ex- investigation might an orderly progress related to the tangentially grand tended issues litigation only The would result be primary objective. jury’s probable * * * effec- interruption jury ‘protracted grand proceedings,’ into trials on the merits. In them tively transforming preliminary be fatal to the enforcement delay some cases might we our criminal law. last Term reaffirmed disinclination to Just with grand jury proceedings: allow interference litigious saddle with minitrials jury would “Any holding grand its assuredly impede investiga- would preliminary showings fair interest in the tion frustrate public’s expeditious Dionisio, of the criminal laws.’ United States v. administration 1, 17, (1973).” 410 U.S. S.Ct. L.Ed.2d answered must be Bennett questions posed by Judge saddling of this strong against against backdrop policy with investigation delays preliminary hearings need for an unfettered grand jury that would frustrate the public not interference “litigious This Court will tolerate investigation. with grand jury proceedings”. as concern authority
We now consider Bennett’s instant case. a district over judge subpoenas
363 Procedure which of Criminal in the Code The section statutory 95-1407, is section R.C.M. power to grand jury subpoena applies 1947, which provides: the of a witness before
“A the attendance requiring subpoena county attorney, by the be and issued jury may signed grand court, for witnesses the district the jury judge or grand state, for those witnesses in the in support prosecution, an is material investigation whose in his testimony, opinion and for such other witnesses as grand before the grand jury, direct.” before them may investigation pending jury upon added.) (Emphasis court, or the the county attorney, grand statute allows
The to sub- It allows one of the three any to issue subpoenas. is, caller’s in the testimony opinion, witnesses whose poena material. case,
However, is the judge’s charge limiting instant grand jury. feature to the scope a rule is that is entitled obtain general all evidence for its delibera necessary subpoena
testimony
circumstances,
However,
to the
tions.
in certain
exceptions
gen
for con
For
there is the necessity
eral rule are made.
example,
of the Fourth
requirements
with the reasonableness
formity
to the United States Constitution.
Fifth Amendments
which is consti
a
duces tecum
The court may quash
subpoena
Henkel,
v.
201 U.S.
S.Ct.
overbroad. Hale
tutionally
a
duces
court
quash
subpoena
Quashing subpoena erroneous. clearly sought materiality testimony *9 364 Cir., Court, 4 238 F.2d States District States v. United
United never may quash that the district court This does not mean 713. jury far afield grand no matter how jury subpoena grand that this only investigation, the area of its original from gomay court, where the extreme cases to the most is limited power abuse of a gross would be permitting not quashing subpoena, Cir., Court, 4 District v. United States In United States process. 713, 722, said: the Court 238 F.2d * * “* to see that its duty has the supervisory While the judge or of oppression abused or used for purposes is not process * * * inquisitorial of its should be no curtailment there injustice abuse.” clearest cases of in the except power test, of abuse some- requires case the clearest Applying relevant whose is testimony witnesses more than recalling thing substantially is something inquiry. Oppression original the grand jury that if he lies before a witness telling more than case, a much stronger in with perjury. Only he will be charged with the use associated was misconduct where there gross with the grand in interfering would be court be justified process, subpoena. quashing grand jury’s investigation by jury’s hold, and we discussion it apparent From the foregoing sub- with the grand jury’s not interfere district court may (a) tecum is over- duces where the subpoena except poena power self-incrimination; (c) in broad; (b) requires where the subpoena conduct; (d) where the grand abusive case of grossly the clearest above; (e) forth set scope goes beyond investigation jury’s interfere, be an where, the result would the court did not if abuse of process. revolves around second issue Bennett’s into the grand jury to inquire district court
authority are being of the charge if the limits to determine proceedings violated, into the inquire grand court may the district it is clear the statutory within that it stays to see only jury proceedings 79-2315, of section R.C.M.1947. provisions directs the Criminal Procedure The Code-of 365 cognizable look into the offenses to a room” and retire “private 95-1406, it, 95-1404(b), R.C.M.1947. Section R.C.M. section 1947, ask advice of the district court allows the advice, that the but it absent a such request judge, requires, the grand be the sessions of judge during jury. district not present not to monitor the grand jury proceedings. The district court is 338, Calandra, at U.S. The United States Supreme 617, 561, 568, L.Ed.2d said: S.Ct. to monitor its It deliberates proceedings. “No judge presides the course of inquiry.” determine alone its may secret Kittle, C.C., was 180 F. where Felix Frankfurter In re United States District Federal District Attorney, the Assistant *10 to a witness from Learned Hand refused relieve Judge examination the grand jury, stating:
“* * * are the voice of the its community fhgy accusing members, is and from such accusation in the the only protection Therefore, of tribunal. and ill- conscience that except sporadic instances, considered the courts have never taken over supervision * * evidence come them *.” what shall before To matter of concern Judge summarize second Bennett, the court has to limit the area of a district authority its at jury investigation by charge given empanelment grand district into the inquire grand court may jury proceedings if were not fol given ascertain instructions which are any being However, lowed. such is to the limits restricted authority 79- to in as forth in section previously referred this set opinion 2315, R.C.M.1947. of the au- is the extent Bennett’s third matter of concern the grand jury court of agents district over
thority them- conducting if are the law or ascertain these agents obeying its is investi- conducting selves while appropriately gation. a hearing order on setting
We noted in this Court’s this matter, filed by concern a petition of the matters of one C. Drescher Pellegrini, counsel for William F. Boyer, John John To sum- quashed. subpoenas to have certain Wade Dahood J. that the fact we note their allegations, the affidavits and marize down, their on testimony from their partially an indictment came further not close off does jury, before the grand first appearance later signed three named witnesses the first Each of inquiry. and com- veracity the accuracy, which reflect upon affidavits an indict- Since testimony. their of prior pleteness it testimony, based on their was ment Dahood partially against but ab- not relevant that it is only would to this Court appear not whether or to ascertain for the grand jury solutely necessary in- of the entire The integrity are correct. very the allegations upon may depend to the Dahood indictment vestigation leading the the three the testimony given accuracy veracity witnesses. earlier, Dahood, related Wade filed
The petition J. witness, filing T. Henry Laughlin. of another testimony before Judge an unusual closed hearing affidavit resulted in taken, a was transcript testimony Bennett at which Laughlin’s this Court in State ex rel. and considered by which was submitted Mont., Court, 553 P.2d St.Rep. Woodahl v. District 1976). between had (June discrepancies That transcript possible subsequent testimony and Laughlin’s Dahood’s affidavit To not have in the affidavit. the events described respecting as was for more testimony, back to the grand jury called Laughlin full in done, the grand jury’s interfered with would have contains Dahood petition the Dahood case. The vestigation *11 conclusions, witnesses are being that the and its only speculation intimidation, are without grounds and recalled for harassment for the and lawful purpose in law or fact. A legitimate either exists; In re Grand Sub Jury should issue. See: they subpoenas Certain Executive Addressed to Duces Tecum poenas Officers of (D.C.1975). Associates, Inc., 391 F.Supp. M. G. Allen & 273, 281, States, 39 S.Ct. 250 U.S. United In Blair v. 979, 982 it was noted: 63 L.Ed.
“ and the of testimony that the giving ‘It is recognized clearly attendance court or in order to are jury public upon grand testify within of duties which the the every person jurisdiction govern- * * * is to ment bound summoned perform upon being properly The sacrifice involved is a- of con- personal necessary the part of tribution the individual to welfare of public. duty, times, onerous at so so to administration necessary yet to the in our justice according forms modes established * * * mitigation is in system government subject exceptional circumstances; there is a constitutional from exemption being oneself, in criminal case to be a witness compelled any against the witness to be excused from entitling answeripg anything * * * will tend to him some incriminate confidential matters are shielded, from in other policy, considerations perhaps reaspps for cases witness be excused from all special may telling that he C knows. — ‘But, aside and none exceptions qualifications from — in the
such asserted case present the witness is bound not only attend, but tell what he knows in answer to questions framed out the truth purpose bringing matter under in- for quiry.’” (Emphasis supplied.)
The district court has limited over a judge power grand jury. called, it is Once is not control as subject except heretofore set out and discussed this opinion. Cir., 1270, 1274,
In United v. States Doe 455 F.2d (Ellsberg), the Court said: * * *
“We recognize cannot be proceedings detail. It is a we any policed price pay grand jury indepen- * * dence *.” case, In that same in a memorandum attached at the end of opinion, statement which we think in the appears applies instant case:
“* * * defendánts seek to break it has before up play started, and then claim the was offside.” government
This shall constitute Opinion declaratory judgment. *12 MR. and
MR. T. HARRISON CHIEF JUSTICE JAMES CASTLES concur. JUSTICE DALY (dissenting).
MR. JUSTICE I dissent. Bennett received a his court petition
Judge June to to or cancel sub- an order show cause requesting suspend Drescher, and persons directed one poenas Pellegrini, Boyer who had before the grand jury. peti- testified previously harassment, tion acts of intimidation and im- certain alleges on the of the grand conduct the officers proper part charge that the peti- function. The pleading affirmatively alleges to the tion one and the same that was is previously presented district court and to the Court on brought Supreme supervisory 7, 1976, and on control. This Court heard matter on June 18, 1976, and set stay and ordered order show cause June as to the no petitioners aside because sworn statements ap- that the Court to would allow plicants accompanied petition with The sworn now has been filed proceed. support present with memorandum of petition together authority. attached a of this and supporting Bennett copy petition
Judge to the Chief documents to communication addressed Justice it be the same petition this Court appears alleging court and the of our order subject his presented previously 18, 1976, certification documenta- supra, alleging June now added. tion held before has been lacking petition that he has not acted on Bennett advises because the Supreme forwarded same to Supreme of these work- “that the moment pith Court has suggested This procedures. compensation proceedings justify special men’s experience any learned by has Court [Judge Bennett’s] other than the grand approving taken in relation to jury, action indictments, will filing vouchers and ordering expense control, for a writ of supervisory an be met by application then, It the intent Court. will Supreme which be heard of this petition to eliminate the [Bennett’s] ex- extraordinary penses and delay occasioned by such proceedings.” *13 Bennett
Judge further requests: “* * * that the Supreme Court issue its opinion on the follow- ing questions raised by the petition” petition filed [The aforesaid in the district court]. Bennett lists the three
Judge questions set out above in the and concludes: majority opinion
“You are requested to review the matters set forth respectfully herein and to take action or advise this appropriate court thereon.” (Emphasis supplied.)
We a have here filed petition with the district court properly with sworn together to move the district allegations court to grant a if hearing determine are petitioners entitled to relief. to fact Instead it is here on a that request this Court sit as a district court to save extraordinary expense and to “act” on the delay or in the alternative petition “advise” the district court.
First the some kind of not at majority through all reasoning, me, clear to that determines request Bennett is not one for or “advisory “advice” as set forth above but opinion” this becomes, it, as I understand a declaratory action. judgment They 57, M.R.Civ.P., cite Rule and various past declaratory judgment Court, cases heard this by none of which are in in this point matter. —93-8916, R.C.M.1947,
Rule 57 that requires section 93-8901 must be observed. The first obvious is how a do we sit as problem district court on this and decide issues of fact without an petition hearing? facts in the are not evidentiary alleged petition 93-8911, R.C.M.1947, facts means. agreed any Section seems by to indicate that facts if are to be resolved all must be parties heard or else would not be bound. of the facts the they Some has decided without an are that the majority evidentiary hearing in is not sufficient to warrant oppression pleaded petition relief; that certain indictments filed were based on the testimony is relevant that further petitioners; testimony petitioners that the Dahood contains necessary; petition only conclusions; law are no grounds there
speculation
harassment;
fact
on
grounded
are
support
subpoenas
and lawful
that the
“seek
break
legitimate
defendants
purpose
started,
the government
before it has
and then claim
up
play
offside”; that,
was
witnesses that
before the
“Most
appear
* * *
nothing
never
indicted
The witnesses lose
be
will
* ’*
indicted,
*.
later be
he would
If witness should
testifying
as a
to him
be accorded the full
range
granted
rights^
If,
time,
at
is offered
defendant in criminal case.
evidence
lie,
that is irrelevant
would
and the legal question
an'objection
* * *
in-
can
determined
a court of law
The constant
be
of the
witnesses who wish
grand jury by
litigate
terruption
* * *
could
result
the investi-
validity
easily
subpoenas
halt.”,
and so on. Even if this
grinding
gation coming
*14
a declaratory
could be characterized as
procedure
judgment
inquiry.
action it has
far
See
gone
beyond
original scope
202,
317,
Kruse,
v.
121 Mont.
P.2d
Surety
National
Corp.
is
this
in 1962 seemed
319. It
also
note that
interesting
to hold that
fails to understand
“Petitioner
purpose
not
are civil and
criminal
Statutes which
Declaratory Judgment
Ellsworth,
and Ed
remedies”.
v. State Montana
Harold
Goff
605, 374
862.
also In the Matter
141 Mont.
P.2d
See
Jr.,
DeWar, Police
169 Mont.
Officer,
Robert
Charges Against
Coate,
ex
v.
169 Mont.
Forsythe
It is my position no law Court. There is this by been decided generally ready which will in a vacuum to decide facts this Court permits court in a district on individual directly petitioners operate determine, the facts first district court should cause. The district court an entered by order is its and until ruling make on which before this Court there is no proper application are no circumstances There can render its opinion. majority that would in law presented this Court to enter a permit which would be on the declaratory judgment binding petitioners in the district court.
The Bennett request by should be dismissed and the matter returned to district court so that the foundation petition all this can be heard preceding in an processed orderly judicial proceeding.
MR. HASWELL (dissenting): JUSTICE I dissent. view,
In
my
a
majority
not
opinion
declaratory judg-
ment,
one,
binds no
and it furnishes no
precedent
future cases.
There are no
as
pleadings
required Montana’s
Uniform De-
Act.
claratory Judgments
Section 93-8901 et seq.; National
Kruse,
Surety
v.
Corp.
Mont.
I would remand this matter to the district court for sufficient particularization it bring within the provisions of the Uniform Act
Declaratory Judgments before accepting jurisdiction.