No. 13437 

IN THE SUPREME COIRT OF THE STATE OF MONTANA 

1976 

IN THE MATTER OF SECRET GRAND JURY 

INQUIRY, JOHN AND JANE DOES THIRTY 

THROUGH THIRTY -NINE 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Appellant: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Howard M. Gilbert, Special Prosecutor argued and 

Thomas Budewitz, Assistant Attorney General, argued, 

Helena, Montana 

Hon. Gordon R. Bennett, District Judge,argued, 

Helena, Montana 

Dexter T2. Delaney, affirmative position argued, 

Missnula, Montana 

For Respondent : 

Robert Emmons, negative position, argued, Great Falls, 

Montana 

Filed : 

Submitted : July 7, 1976 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

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 subpoenas ? 

2) What authority has the district court to examine the 

proceedings 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 a 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 5 150. We are here involved with justiciable issues. ar'ising 6rom 

bana ride c6ntroverk.l-es En the dbstr'ict .court. 

We consider Judge Bennett's questions as justiciable 

controversies contempLaed 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 

final j udgmen t 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. 

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 prescisely the situation that 

exists in the present case. * *I1 

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 .'I 

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, resdting in a number of lndiccmentsc 

. 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 Litiga.tionl', 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.VIS, Sec. 2 of the Montana Constitution, in order 

to remedy and mitigate the effects of the foregoing situation, 

"IT IS ORDERED: 

" (1) 

public pr 

district 

That the attorney general of Montana and other 

bosecutors, all defense counsel, and the presiding 

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. . 

I' (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 .'I 

Following the hearing on June 21St, 1976, Judge Bennett 

petitioned this Court for a declaratory judgment, this Court's No. 

13437, as to the heretbfore 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, 

"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 US 273, 282, 63 L Ed 979, 39 S.Ct. 468 

(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. * 9; *I' 

There is a grave public need for a grand jury which may 

conduct an unfettered and uninterrupted investigation. The grand 

iury has a responsibility to the public to thoroughly investigate 2 

the matters before it. The public must know that no lead went uninvestigated, that the public may have confidence in the full and fair 

adrriinistration of justice. 

Measuring the public need for a full, broad grand jury 

invescigation against any potential harm to a witness who has 

been subpoenaed, it is clear the need for an unfettered grand jury 

is much greater. What, if anything, is lost by anyone if the grand 
jury hears evidence from a witness a second time, even if that 

evidence was conceded to be irrelevant to the grand jury's basic 

investigation. The grand jury conducts its investigation in secret, 

and its investigation is not adversarial. The grand jury does not 

determine guilt or innocence, it only determines if criminal proceedings should be begun. Most of the witnesses that appear before 

the grand jury will never be indicted, but the grand jury needs 

their testimony simply to continue its investigation. The witnesses 

lose nothing by testifying. The grand jury has a right to every 

man's evidence, even if it would be embarrassing to him personally. 

Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L ed 2d 626. 

If a witness should be later indicted, he would be accorded the 

full range of rights granted to him as a defendant in a criminal 

case. If, at that time, evidence is offered that is irrelevant 

an objection would lie, and the legal question can be determined 

in a court of law. 

The constant interruption of the grand jury by witnesses 

who wish to litigate the validity of the subpoenas which call them 

before the grand jury, could easily result in the investigation 

coming to a grinding halt. 

The logic of the United States Supreme Court in Calandra 

explaining why the exclusionary rule should not apply to grand jury 

proceedings applies with equal force to the questions now before 

this Court: 

"* * Because the grand jury does not finally adjudicate 

guilt or innocence, it has traditionally been allowed to 

pursue its investigative and accusatorial functions unimpeded 

by the evidentiary and procedural restrictions applicable 

to a criminal trial. Permitting witnesses to invoke the 

exclusionary rule before a grand jury would precipitate 

adjudication of issues hitherto reserved for the trial on 

the merits and would delay and disrupt grand jury proceedings. 
Suppression hearings would halt the orderly progress 

of an,investigation and might necessitate extended 

litigation of issues only tangentially related to the 

grand jury's primary objective. The probable result would 

be 'protracted interruption of grand jury proceedings, t 

* 9~ * effectively transforming them into preliminary trials 

on the merits. In some cases the delay might be fatal to 

the enforcement of the criminal law. Just last Term we 

reaffirmed our disinclination to allow litigious interference 

with grand jury proceedings: 

"'Any holding that would saddle a grand jury with 

minitrials and preliminary showings would assuredly 

impede its investigation and frustrate the public's 

interest in the fair and expeditious administration of 

the criminal laws.' United States v. Dionisio, 410 U.S. 1, 

17, 35 L Ed 2d 67, 93 S.Ct. 764 (1973) .I' 

The questions posed by Judge Bennett must be answered against the 

backdrop of this strong policy against saddling the grand jury 

investigation with delays for preliminary hearings that would 

frustrate the public need for an unfettered grand jury investigation. 

This Court will not tolerate "litigious interference with grand 

jury proceedings". 

We now consider Judge Bennett's concern as to the authority 

of a district judge over grand jury subpoenas in the instant case. 

The statutory section in the Code of Criminal Procedure which applies 

to grand jury subpoena power is section 95-1407, R.C.M. 1947, 

which provides: 

"A subpoena requiring the attendance of a witness before 

the grand jury may be signed and issued by the county 

attorney, by the grand jury or by the judge of the district 

court, for witnesses in the state, in support of the prosecution, for those witnesses whose testimony, in his 

opinion is material in an investigation before the grand 

jury, and for such other witnesses as the grand jury upon 

investigation pending before them may direct." (Emphasis 

added. ) 

The statute allows the court, the county: attorney, or the grand 

jury to issue subpoenas. It allows any one of the three to subpoena 

witnesses whose testimony is, in the caller's opinion, material. 
However, in the instant case, the judge's charge is Che 

limiting feature to the scope of the grand jury. 

The general rule is that a grand jury is entitled to obtain 

testimony or subpoena all evidence necessary for its deliberations. 

However, in certain circumstances, exceptions to the general rule 

are made. For example, there is the necessity for conformity with 

the reasonableness requirements of the Fourth and Fifth Amendments 

to the United States Constitution. 

The court may quash a subpoena duces tecum which is constitutionally overbroad. Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 

50 L ed 652. The court may quash a subpoena duces tecum which 

violates the Fifth Amendment's right against self-incrimination. 

,3,g!!/ 

Boyd v. United States, 116 U.S. 616, 6 S. Ct.-$&3f 29 L ed 746; 

Losavio v. District Court In & For Tenth Jud. Dist., (Colo. 1975), 

533 P.2d 32. A grand jury may subpoena a witness even though it is 

powerless to force him to testify over a valid claim of self-incrimination absent a grant of immunity. United States v. Winter, 348 F.2d 

204. 

Quashing a subpoena because there is no showing of the 

materiality of the testimony sought is clearly erroneous. United 

States v. United States District Court, 238 F.2d 713. This does 

not mean that the district court may never quash a grand jury subpoena no matter how far afield the grand jury may go from the area 

of its original investigation, only that this power is limited to 

the most extreme cases where the court, by not quashing the subpoena, 

would be permitting a gross abuse of process. In United States v. 

United States District Court, 238 F. 2d 713, 722, the Court said: 

IT* * * While the judge has the supervisory duty to see 

that its process is not abused or used for purposes of 
oppression or injustice * * * there should be no curtailment of its inquisitorial power except in the 

clearest cases of abuse ." 

Applying that test, the clearest case of abuse requires something 

more than recalling witnesses whose testimony is relevant to the 

original inquiry. Oppression is something substantially more 

than telling a witness that if he lies before the grand jury he will 

be charged with perjury. Only in a much stronger case, where there 

was gross misconduct associated with the use of process, would 

the court be justified in interfering with the grand jury's investigation by quashing the grand jury's subpoena. 

From the foregoing discussion it is apparent and we hold, 

that the district court may not interfere with the grand jury's 

subpoena power except (a) where the subpoena duces tecum is overbroad; (b) where the subpoena requires self-incrimination; (c) 

in the clearest case of grossly abusive conduct; (d) where the 

grand jury's investigation goes beyond the scope set forth above; 

or (e) where, if the court did not interfere, the result would be 

an abuse of process. 

Judge Bennett's second issue revolves around the authority 

of the district court to inquire into the grand jury proceedings 

to determine if the limits of the charge are being violated. It 

is clear the district court may inquire into the grand jury proceedings 

only to see that it stays within the statutory provisions of section 

79-2315, R.C.M. 1947. 

The Code of Criminal Procedure directs the grand jury to 

retire to a "private roomf' and look into the offenses cognizable 

by it, section 95-1404(b), R.C.M. 1947. Section 95-1406, R.C.M. 

1947, allows the grand jury to ask advice of the district court judge, 

but it requires, absent a request for such advice, that the district 

judge not be present during the sessions of the grand 
jury. The district court is not to monitor the grand jury 

proceedings. The United States Supreme Court in Calandra at 

38 L ed 2d 561, 568, said: 

I I No judge presides to monitor its proceedings. 

It deliberates in secret and may determine a-lone 

the course of its inquiry." 

In re Kittle, 180 F. 946, 947, where Felix Frankfurter 

was the Assistant United States District Attorney, Federal 

District Judge Learned Hand refused to relieve a witness from 

examination by a grand jury, stating: 

"* * They are the voice of the community accusing 

its members, and the only protection from such 

accusation is in the conscience of that tribunal. 

Therefore, except in sporadic and ill-considered 

instances, the courts have never taken supervision over 

what evidence shall come before them * * *." 

To summarize the second matter of concern to Judge Bennett, 

the district court has authority to limit the area of a grand jury 

investigation by its charge given at empanelment and the district 

caurt may inquire into the grand jury proceedings to ascertain 

if any instructions which were given are not being followed. 

However, such authority is restricted to the limits previously 

referred to in this opinion as set forth in section 79-2315, R.C.M. 

Judge Bennett's third matter of concern is the extent of the 

authority of the district court over the agents of the grand jury 

to ascertain if these agents are obeying the law or conducting themselves appropriately while the grand jury is conducting its investi 

gation. 

We noted in this Court's order setting a hearing on this 

matter, that one of the matters of concern is a petition filed 

by counsel for John Boyer, William F. Pellegrini, John C. Drescher 
and Wade J. Dahood to have certain subpoenas quashed. To summarize 

the affidavits and their allegations, we note that the fact an indictment came down, partially from their testimony on their first 

appearance before the grand jury, does not close off further inquiry. 

Each of the first three named witnesses later signed affidavits 

which reflect upon the accuracy, veracity and completeness of their 

prior grand jury testimony. Since an indictment against Dahood 

was partially based on their testimony, it would appear to this 

Court that it is not only relevant but absolutely necessary for 

the grand jury to ascertain whether or not the allegations are 

correct. The very integrity of the entire investigation leading 

to the Dahood indictment may depend upon the veracity and accuracy 

of the testimony given by the three witnesses, 

The petition of Wade J. Dahood, filed earlier, related 

to testimony of another witness, Henry T. Laughlin. The filing 

of that affidavit resulted in an unusual closed hearing before 

Judge Bennett at which Laughlin's testimony was taken, a transcript 

of which was submitted and considered by this Court in State ex 

rel. Woodahl v. District Court, Mont . , P.2d 9 

33 St.Rep. 537, (June 1976). That transcript has possible discrepancies between Dahood's affidavit and Laughlin's subsequent 

testimony respecting the events described in the affidavit. To not 

have called Laughlin back to the grand jury for more testimony, 

as was done, would have interfered with the grand jury's full 

investigation of the Dahood case. The Dahood petition contains 

only speculation and its conclusions, that the witnesses are being 

recalled for harassment and intimidation, are without grounds either 

in law or fact. A legitimate and lawful purpose for the subpoenas 

exists; they should issue. See: In re Grand Jury Subpoenas Duces 
Tecum Addressed to Certain Executive Officers of the M.G. Allen & 

Associates, Inc., 391 Fed. Supp. 991 (1975). 

In Blair v. United States, 250 U. S. 273, 39 S. Ct. 468, 

63 L ed 979, 982, it was noted: 

"'It is clearly recognized that the giving of 

testimony and the attendance upon court or grand 

jury in order to testify are public duties which 

every person within the jurisdiction of the government is bound to perform upon being properly summoned * * * The personal sacrifice involved is a part of 

the necessary contribution of the individual to the 

welfare of the public. The duty, so onerous at times, 

yet so necessary to the administration of justice 

according to the forms and modes established in our 

system of government * * * is subject to mitigation 

in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal 

case to be a witness against oneself, entitling the 

witness to be excused from answering anything that will 

tend to incriminate him * * * some confidential matters 

are shielded, from considerations of policy, and perhaps in other cases for special reasons a witness may be 

excused from telling all that he knows. 

11 1 But, aside from exceptions and qualifications-- 

and none such is asserted in the present case--- 

the witness is bound not only to attend, but to tell 

what he knows in answer to questions framed for the 

purpose of bringing out the truth of the matter under 

inquiry. " (Emphasis supplied.) 

The district court judge has limited power over a grand jury. 

Once it is called, the grand jury is not subject to control except 

as heretofore set out and discussed in this opinion. 

In United States v. Doe (Ellsberg), 455 F.2d 1270, 1274, the 

Court said: 

11 We recognize * * * that grand jury proceedings cannot 

be policed in any detail. It is a price we pay for 

grand jury independence * * *.I1 

In that same case, in a memorandum attached at the end of the 

opinion, appears a statement which we think applies in the instant 

case: 

If* * *defendants seek to break up the play before it 

has started, and then claim the government was offside." 

This Opinion shall constitute declaratory judgment. a\ 
@ 

Chief Justiceu 

.................................. 

Justices 
Mr. Justice Gene B. Daly dissenting 

I dissent. 

Judge Bennett received a petition in his court June 22, 

1976 requesting an order to show cause to suspend or cancel 

subpoenas directed to one Pellegrini, Boyer and Drescher, persons 

who had previously testified before the grand jury. The petition 

alleges certain acts of harassment, intimidation and improper 

conduct on the part of the officers in charge of the grand jury 

function. The pleading affirmatively alleges that the petition 

is one and the same that was previously presented to the district 

court and brought to the Supreme Court on supervisory control. 

This Court heard the matter on June 7, 1976, and on June 18, 1976, 

and ordered the order to show cause and stay set aside as to the 

petitioners because no sworn statements by applicants accompanied 

the petition that would allow the Court to proceed. The sworn 

support now has been filed with the present petition together 

with memorandum of authority. 

Judge Bennett attached a copy of this petition and supporting documents to a communication addressed to the Chief Justice 

of this Court alleging that it appears to be the same petition 

previously presented to his court and the subject of our order 

of June 18, 1976, supra, and alleging certification or documentation held lacking before has now been added. 

Judge Bennett advises that he has not acted on the petition and forwarded same to the Supreme Court because the Supreme 

Court has suggested "that the pith and moment of these workmen's 

compensation proceedings justify special procedures. This Court 

[Judge Bennett's] has learned by experience that any action taken 

in relation to the grand jury, other than approving of expense 

vouchers and ordering the filing of indictments, will be met by 

an application for a writ of supervisory control, which will be 
heard by the Supreme Court. It is then, the intent of this petition [Bennett's] to eliminate the extraordinary expenses and delay 

occasioned by such proceedings." 

Judge Bennett further requests: 

" * * * that the Supreme Court issue its o~inion 

on the following questions raised by the aioresaid petition" [The petition filed in the district 

Judge Bennett lists the three questions set out above in the 

majority opinion and concludes: 

"You are respectfully requested to review the 

matters set forth herein and to take appropriate 

action or advise this court thereon." (~mphasis 

supplied.) 

We have here a petition properly filed with the district 

court together with sworn allegations to move the district court 

to grant a fact hearing to determine if the petitioners are 

entitled to relief. Instead it is here on a request that this 

Court sit as a district court to save extraordinary expense and 

delay and to "act" on the petition or in the alternative "advise" 

the district court. 

First the majority through some kind of reasoning, not 

at all clear to me, determines that the request of Judge Bennett 

is not one for "advisory opinion" or "advice" as set forth above 

but this becomes, as I understand it, a declaratory judgment 

action. They cite Rule 57, M.R.Civ.P., and various past declaratory judgment cases heard by this Court, none of which are in 

point in this matter. 

Rule 57 requires that section 93-8901- 93-8916, R.C.M. 

1947, must be observed. The first obvious problem is how do 

we sit as a district court on this petition and'decide issues of 

fact without an evidentiary hearing? The facts alleged in the 

petition are not agreed facts by any means. Section 93-8911, R.C.M. 

1947, seems to indicate that if facts are to be resolved all 
parties must be heard or else they would not be bound. Some 

of the facts the majority has decided without a evidentiary 

hearing are that the oppression pleaded in the petition is 

not sufficient to warrant relief; that certain indictments 

filed were based on the testimony of petitioners; that further 

testimony of petitioners is relevant and necessary; that the 

Dahood petition contains only speculation and conclusions; 

that there are no grounds in law or fact to support harassment; 

the subpoenas are grounded on legitimate and lawful purpose 

that the defendants "seek to break up the play before it has 

started, and then claim the government was offside"; that, 

"Most witnesses that appear before a grand jury will never be 

indicted* * * T.he witnesses lose nothing by testifying * * *. 

If a witness should later be indicted, he would be accorded the 

full range of rights granted to him as a defendant in a criminal 

case. If, at that time, evidence is offered that is irrelevant 

an objection would lie, and the legal question can be determined 

constant 

by a court of law * * * The/interruption of the grand. jury by 

witnesses who wish to litigate the validity of the subpoenas * * * 

could easily result in the investigation coming to a grinding 

halt.", and so on. Even if this procedure could be characterized 

as a declaratory judgment action it has gone far beyond the original scope of inquiry. See National Surety Corp. v. Kruse, 121 

Mont. 202, 192 P.2d 317, 319. It is also interesting to note 

that this Court in 1962 seemed to hold that "Petitioner fails to 

understand the purpose of the Declaratory Judgment Statutes which 

are civil and not criminal remedies". Harold Goff v. State of 

Montana and Ed Ellsworth, Jr., 141 Mont. 605, 374 P.2d 862. See 

also In the Matter of Charges Against Robert DeWar, Police Officer, 

Mont . , 548 P.2d 149, 33 St.Rep. 353 (1976) and State ex rel. 

Forsythe v. Coate, Mont . , 546 P.2d 1060, 33 St.Rep. 310, 

(1976) . 

- 16 - 
It is my position that the questions by Judge Bennett 

have already been generally decided by this Court. There is no 

law that permits this Court to decide facts in a vacuum which 

will operate directly on individual petitioners in a district 

court cause. The district court should first determine the 

facts and make its ruling and until an order is entered by the 

district court there is no proper application before this Court 

on which the majority can render its opinion. There are no 

circumstances presented that would in law permit this Court to 

enter a declaratory judgment which would be binding on the 

petitioners in the district court. 

The request by Judge Bennett should be dismissed and 

the matter returned to the district court so that the foundation 

petition preceding all of this 

orderly judicial proceeding. 

Justice 
Mr. Justice Frank I. Haswell dissenting: 

I dissent. 

In my view, the majority opinion is not a declaratory 

judgment, binds no one, and it furnishes no precedent in future 

cases. There are no pleadings as required by Montana's Uniform 

Declaratory Judgments Act. Section 93-8901 et seq.; National 

Surety Corp. v. Kruse, 121 Mont. 202, 192 P.2d 317. All persons 

who have or claim an interest which would be affected by the 

declaration have not been made parties as required by section 

93-8911, R.C.M. 1947. The issues in this matter have not been 

framed in a factual setting permitting entry of a declaratory 

judgment. National Surety Corp. v. Kruse, supra. 

Instead of a bona fide substantial controversy between 

identifiable parties seeking specific relief through a decree of 

conclusive character as required to vest this Court with jurisdiction (Chovanak v. Matthews, 120 Mont. 520, 188 P.2d 582), we 

simply have a request for answers to three broad, theoretical 

and abstract questions. In short, the majority has rendered an 

advisory opinion without legal authority to do so. The majority 

opinion is not a declaratory judgment but simply a gratuitous 

opinion, furnishing neither guidance nor precedent, and binding 

no one, not even its author. I foresee substantial mischief 

in the broad, sweeping language employed. 

I would remand this matter to the district court for 

sufficient particularization to bring it within the provisions 

of the Uniform Declaratory Judgments Act before accepting jurisdiction. 

Justice