Secret Grand Jury Inquiry, John and Jane Does Thirty Through Thirty-Nine, Matter of

• Decision Date: 25 August 1976
• Docket Number: THIRTY-NINE,No. 13437,13437
• Citation: 170 Mont. 354,553 P.2d 987
• Parties: In the Matter of SECRET GRAND JURY INQUIRY, JOHN AND JANE DOES THIRTY THROUGH
• Court: Montana Supreme Court

Page 987

553 P.2d 987

170 Mont. 354

In the Matter of SECRET GRAND JURY INQUIRY, JOHN AND JANE DOES THIRTY THROUGH THIRTY-NINE.

No. 13437.

Supreme Court of Montana.

Submitted July 7, 1976.

Decided Aug. 18, 1976.

Rehearing Denied Aug. 25, 1976.

Robert L. Woodahl, Atty. Gen., Helena, Howard M. Gilbert, Spec. Prosecutor argued and Thomas Budewitz, Asst. Atty. Gen., argued, Helena, Gordon R. Bennett, District Judge, argued, Helena, Dexter L. Delaney, affirmative position argued, Missoula, for appellant.

Robert J. Emmons, negative position, argued, Great Falls, for respondent.

JOHN C. HARRISON, Justice.

This is a petition of Hon. Gordon R. Bennett, presiding district judge in charge of the Lewis and Clark County grand jury, requesting in effect a declaratory judgment from this Court on certain issues raised in the grand jury proceedings of the Workmen's Compensation Division, Department of Labor and Industry, State of Montana.

Three issues are presented:

1) What authority does the district court have over grand jury sobpoenas?

2) What authority has the district court to examine the proceeds of the grand jury to determine if its instructions, given upon empanelment are being adhered to?

3) What authority has the district court to determine whether agents of the grand jury, such as investigators, are adhering to the law or conducting themselves appropriately as attaches of the court?

The petition was set for oral argument before this Court on July 7, 1976, together with several other matters arising out of the grand jury investigation. Several counsel argued for this Court to accept the district court's petition, while others argued this Court had no authority to issue an advisory opinion, and there was nothing before the Court upon which to make a determination, either by appeal or by supervisory control.

With the argument that this Court has no jurisdiction, we cannot agree. In the first instance, the petition of Judge Bennett is not one for an advisory opinion. Advisory opinions are those opinions issued by the court in response to a request from some other branch of government, such as the legislative or executive, asking for information concerning matters of law. 16 C.J.S. Constitutional Law § 150. We are here involved with justiciable issues arising from bona fide controversies in the district court.

We consider Judge Bennett's questions as justiciable controversies contemplated by Rule 57, Montana Rules Civil Procedure. First, a justiciable controversy requires that parties have existing and genuine, as distinguished from theoretical, rights or interests. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument invoking a purely political, administrative, philosophical or academic conclusion. Third, it must be a controversy the judicial determination of which will have the effect of a final judgment in law or decree in equity upon the rights, status or legal relationships of one or more of the real parties in interest, or lacking these qualities be of such an overriding public moment as to constitute the legal equivalent of all of them. The decisions of this Court recognize and support this definition. See: The Forty-Second Legislative Assembly v. Lennon, 156 Mont. 416, 420, 481 P.2d 330; Conrad et al. v. Managhan et al., 157 Mont. 335, 485 P.2d 948; State ex rel. Kvaalen v. Graybill, 159 Mont. 190, 496 P.2d 1127; Woodahl v. Montana Board Natural Resources and Conservation, 163 Mont. 193, 516 P.2d 383; State ex rel. Irvin v. Anderson, 164 Mont. 513, 525 P.2d 564.

As this Court stated in Lennon, in taking jurisdiction under the Montana Uniform Declaratory Judgments Act, Title 93, Chap. 89, R.C.M.1947:

'A declaratory judgment action is a proper proceeding in which to reach and answer the legal issues raised in this proceeding. A court of record in Montana is specifically granted the power 'to declare rights, status, and other legal relations' of a party (section 93-8901, R.C.M.1947) which 'are affected by a statute' (section 93-8902, R.C.M.1947) and in which a declaratory judgment 'will terminate the controversy or remove an uncertainty' (section 93-8905, R.C.M.1947). This is precisely the situation that exists in the present case. * * *'

First, we outline a brief factual setting of the grand jury cases. In 1974, the Montana legislature enacted section 79-2315, R.C.M.1947, which provides in pertinent part:

'The attorney general shall conduct on behalf of the state, all prosecutions for public offenses disclosed by an audit of a state agency performed by the legislative auditor. If the attorney general shall decline such prosecution or shall fail to commence action on a public offense within a reasonable time the county attorney of the appropriate county shall conduct on behalf of the state such prosecution.'

Pursuant to the direction of section 79-2315, the attorney general began an investigation arising out of an audit of the Workmen's Compensation Division and requested the two judges of the first judicial district to call a grand jury. This request was denied and the attorney general applied to this Court for a writ of supervisory control, directing the two judges to empanel a grand jury. In State ex rel. Woodahl v. District Court, 166 Mont. 31 530 P.2d 780, 32 St.Rep. 11, this Court ordered the empanelment of a grand jury and since that time the grand jury has been functioning, resulting in a number of indictments.

Due to numerous delays in getting cases to trial, this Court issued this order dated June 15, 1976, entitled 'In the Matter of the Workmen's Compensation Litigation', this Court's No. 13410:

'It appearing in the light of recent events that the rights of the public, the state, the defendants and the judiciary are being subordinated to personal and extraneous ends and purposes,

'And it appearing that the Montana Supreme Court should act under its general supervisory powers pursuant to Art. VII, Sec. 2 of the Montana Constitution, in order to remedy and mitigate the effects of the foregoing situation,

'IT IS ORDERED:

'(1) That the attorney general of Montana and other public prosecutors, all defense counsel, and the presiding district judges in all pending criminal cases involving the Workmen's Compensation investigations and prosecutions are directed to appear at a Conference to be held in the Courtroom of this Supreme Court on the 21st day of June, 1976, at 2:00 p. m.

'(2) That the Commission on Practice is directed to investigate the conduct of all public prosecutors and defense attorneys in pending Workmen's Compensation litigation, determine whether there are any violations of the Code of Professional Responsibility and transmit the Commission recommendations, including disciplinary action, if indicated, to this Court in the usual manner.

'(3) That in order to prevent further injury to the rights of the public, the state, the defendants and the judiciary pending the Conference herein provided, all counsel, their staffs, clerks, stenographers and attaches are ordered and directed to refrain directly or indirectly from public comment in any way relating to the litigation heretofore described.

'(4) Any violation of this order shall subject the offender to proceedings for contempt of court.

'(5) The Clerk of this Court is directed to cause notice to be given by mailing a true copy hereof forthwith to all public prosecutors, defense counsel, and presiding district judges in all pending Workmen's Compensation cases. District judges shall bring the district court file to the Conference herein provided.

'(6) No excuses will be accepted for nonattendance at said Conference.'

Following the hearing on June 21st 1976, Judge Bennett petitioned this Court for a declaratory judgment, this Court's No. 13437, as to the heretofore enumerated three questions. Underlying the questions is a basic question as to the nature of a grand jury proceeding, which must be answered before giving specific answers to Judge Bennett's questions.

The Supreme Court of the United States discussed the nature of grand jury proceedings in United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561, 568, 569, 572:

'Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. 'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).

'The scope of the grand jury's powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury's investigative power must be broad if its public responsibility is adequately to be discharged. * * *'

There is a grave public need for a grand jury which may conduct an unfettered and uninterrupted investigation. The grand jury has a responsibility to the public to thoroughly investigate the matters before it. The public must know that no lead went uninvestigated, that the public may have confidence in the full and fair...