No. 13437 

### INTHE SUPREME COIRT OF THE STATE OF MONTANA 1976

INTHE MATTER OF SECRET GRAND JURY INQUIRY, JOHNAND 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 ConwayHarrison 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 CompensationDivision,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, togetherwith several othermatters 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 uponwhich 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 issuedby a court in response to a request from some other branch of government,such as the legislative or executive,asking for information concerningmatters of law. 16 C.J.S. Constitutional Law 

### 5150. We are here involvedwith 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 justiciablecontroversy 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 courtmay 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 ofwhich will have the effect final j 

### udgment in law or decree in equity upon the rights, status or legal relationships of one or more of the realparties 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-SecondLegislative 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;Woodahlv. Montana.Board Natural Resources and 

### Conservation, 163Mont. 193, 516 P.2d 

### 383; State ex rel. Irvinv. Anderson, 164Mont. 513, 525 P.2d 564. As this Court stated in Lennon, in taking jurisdiction under the Montana Uniform Declaratory JudgmentsAct, Title 93, Chap. 89,R.C.M. 1947:"A 

### declaratoryjudgment action 

### is a proper proceeding inwhich toreach and answer the legal issues raised in this proceeding. A 

### court of record inMontana 

### 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 affectedby a statute' (section 93-8902, R.C.M. 

### 1947) and inwhich a declaratoryjudgment 'will terminate the controversy or remove an uncertainty' (section 93- 8905, R.C.M. 

### 1947). This 

### is prescisely the situationthat exists inthe present case.

# * *I1 

### First, we outline a brief factual setting of the grand jury

cases. In 1974, theMontana legislature enacted section 79-2315, R.C.M. 

### 1947, which provides inpertinent part: "The attorney general shall conduct on behalf of the state, allprosecutions for public offenses disclosedby an audit of a stateagency performed by the legislative auditor. If the attorney general shalldecline such prosecution or shall failtocommence action on a public offense within a reasonable time the county attorney of the appropriate county shallconduct 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 firstjudicial district to calla grandjury. This request was denied and the attorneygeneral applied to this Court fora 

### writ of supervisory control, directing the two judges to empanel a grand jury. 

### In Stateex rel. Woodahl v. District Court, 166Mont. 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 tonumerous delays ingetting cases to trial, this Court issued this order dated June 15, 1976, entitled "In theMatter of theWorkmen's Compensation Litiga.tionl', thisCourt's No. 13410:

### "It appearing in the light of recent events that the rights of the public, the state, the defendants and the judiciary arebeing subordinated to personal and extraneous ends and purposes, "And it appearing that theMontana Supreme Court should act under its general supervisory powers pursuant to Art.VIS, Sec. 

### 2 of theMontana 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 2:00p.m. "(2) That the Commission on Practice is directed to investigate the conduct of all public prosecutors and defense attorneys inpending Workmen's Compensation litigation,determine whether there are anyviolations of the Code of Professional Responsibilityand transmit the Commission recommendations, including disciplinaryaction, if indicated,to this Court in the usualmanner. "(3) That in order to prevent further injury to the rights of the public, the state, the defendants and the judiciarypending the Conference herein provided, all counsel, their staffs, clerks, stenographers and attaches are ordered and directed to refrain directly or indirectly frompublic comment in anyway 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 givenby mailing a true copyhereof forthwith to all public prosecutors,defense counsel,and presiding district judges in all pending Workmen's Compensation cases. District judges shallbring the district court file to the Conferencehereinprovided. "(6) No excuseswill be accepted fornonattendance 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 juryproceeding, which must be answered before giving specific answers to Judge Bennett's questions. The Supreme Court of the United States discussed the nature of grandjury proceedings inUnited States v. Calandra, 414 U.S. 338,

"Traditionally the grandjury has been accorded wide latitude to inquire intoviolations of criminal law. No judge presides tomonitor 

### 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 tobe limited narrowly by questions of propriety or forecasts of the probable result of the investigation, orby doubts whether any particular individual

### willbe 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 grandjury's powers reflects 

### its special role in insuring fair and effective law enforcement. A grand jury proceeding isnot an adversary hearing inwhich 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 tobe 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 fulland 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 isclear the need for an unfettered grand jury is much greater. What, if anything, islostby anyone if the grand

### jury hears evidence from a witness a second time, even if that evidencewas conceded to be irrelevant to the grand jury'sbasic 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 jurywill never be indicted, but the grand jury needs their testimony simply to continue its investigation. Thewitnesses 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, 

### 408U.S. 665, 92S.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 objectionwould lie, and the legal question canbe determined in a court of law. The constant interruption of the grand jury by witnesses who wish to litigate the validity of the subpoenaswhich 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 applieswith equal force to the questions now before this Court: 

# "* * Because the grand jury does not finally adjudicate guilt or innocence, it has traditionallybeen allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permittingwitnesses 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,investigationand might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective. The probable resultwould be 'protracted interruption of grand jury proceedings,t 

# * 9~

# * effectively transforming them into preliminary trials on themerits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Termwe 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,410U.S. 1, 17, 

### 35 L Ed 2d 67, 93 S.Ct. 764 (1973) .I' The questions posed by JudgeBennett must be answered against the backdrop of this strong policy against saddling the grand jury investigationwith delays for preliminary hearings that would frustrate the public need for an unfettered grand jury investigation. This Courtwill not tolerate "litigious interferencewith 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 Procedurewhich 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 jurymay be signed and issued by the county attorney, by the grand jury or by the judge of the district court, forwitnesses 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 investigationpending before themmay 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 isthat a grand jury isentitled to obtain testimony or subpoena allevidence 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 FifthAmendments 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 FifthAmendment'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 isno showing of the materiality of the testimony sought isclearly erroneous. United States v. United StatesDistrict 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 thejudge has the supervisory duty to see that its process isnot 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 substantiallymore than telling a witness that ifhe liesbefore the grandjury he 

### will be charged with perjury. Only ina much stronger case, where there

was gross misconduct associated with the use of process, would the court bejustified ininterferingwith the grand jury's investigationby quashing the grand jury's subpoena. From the foregoing discussion it 

### is apparent and we hold, that the districtcourt may not interferewith the grandjury'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, ifthe court did not interfere, the resultwould be

an abuse of process. Judge Bennett's second issue revolves around the authority of the district court to inquire into the grandjury proceedings to determine if the 

### limitsof the charge arebeing violated. It is clear the districtcourt may inquire into the grand jury proceedings only to see that it 

### stayswithin the statutoryprovisions of section 79-2315, 

### R.C.M. 1947. The Code of Criminal Procedure directs the grandjury to retire toa "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 grandjury to ask advice of the district courtjudge, but it 

### requires, absent a request for such advice, that the district judge not be present during the sessions of the grandjury. The district court is not tomonitor the grand jury proceedings. The United States Supreme Court in Calandra at 

### 38 L ed 2d 561, 568, said:

II

No judge presides tomonitor itsproceedings. It deliberates in secret and may determine a-lone the course of itsinquiry." 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 itsmembers, 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 toJudge Bennett, the district court has authority to limit the area of a grand jury investigation by 

### its charge given atempanelment and the district caurt may inquire into the grand jury proceedings to ascertain if any instructionswhich were given arenot being followed. However, such authority is restricted to the limitspreviously referred to in this opinion as set forth in section 79-2315, R.C.M.

Judge Bennett's thirdmatter 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 inthis 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 absolutelynecessary for the grand jury to ascertain whether or not the allegations are correct. The very integrity of the entire investigation leading to the Dahood indictmentmay 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 testimonywas taken, a transcript ofwhichwas 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 transcripthas possible discrepancies between Dahood's affidavit and Laughlin's subsequent testimony respecting the events described in the affidavit. To not have called Laughlinback to the grand jury formore 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 DucesTecum 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, itwas noted: "'It isclearlyrecognized that the giving of testimony and the attendance upon court orgrand jury in order to testify are public duties which every person within thejurisdiction of the government isbound toperform 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 attimes, yet sonecessary to the administration of justice according to the forms and modes established in our system of government

# *

# ** issubject tomitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case tobe a witness against oneself, entitling the witness tobe 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 allthat he knows.

111But, aside from exceptions and qualifications-- and none such is asserted in the present case--- thewitness isbound not only to attend, but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of thematter under inquiry. " (Emphasis supplied.) The district courtjudge has limited power over a grand jury. Once it iscalled, the grand jury isnot subject to control except as heretofore set out and discussed in this opinion. InUnited Statesv. Doe (Ellsberg), 455 F.2d 1270, 1274, the Court said:

11

We recognize

# *

# ** that grandjury proceedings cannot be policed in any detail. It isa pricewe pay for grandjury independence

# ** *.I1 In that same case, in a memorandum attached atthe end of the opinion, appears 

### a statement which we think applies in the instant

case:

If*

# * *defendants seek tobreak up the play before it has started, and then claim the government was offside." This Opinion shallconstitute declaratoryjudgment. 

# a\@ Chief Justiceu



## .................................. JusticesMr. Justice Gene B. Daly dissenting I dissent. Judge Bennett received a petition inhis court June 22, 1976 requesting an order to show cause to suspend orcancel subpoenas directed toone Pellegrini, Boyer and Drescher, persons who had previously testified before the grand jury. The petition alleges certain actsof harassment, intimidation and improper conduct on thepart of the officers incharge of the grand jury function. The pleading affirmatively alleges that thepetition is one and the same thatwas previously presented tothe district court and brought tothe Supreme Court on supervisory control. This Court heard thematter on June 7, 1976, and on June 18, 1976, and ordered the order toshow cause and stay setaside as tothe petitioners because no sworn statements by applicants accompanied the petition thatwould allow the Court toproceed. The sworn support now has been filed with thepresent petition together with memorandum of authority. Judge Bennett attached a copy of thispetition and supporting documents to a communication addressed tothe Chief Justice of this Court alleging that it appears tobe the same petition previously presented tohis 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 thepetition and forwarded same tothe 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 inrelation tothe grand jury, other than approving of expense vouchers and ordering the filingof indictments, willbe metby

an application for a writof supervisory control, which willbeheard by the Supreme Court. It is then, the intent of this petition [Bennett's] toeliminate the extraordinary expenses and delay occasioned by such proceedings." Judge Bennett further requests: 

### " 

## * * * that the Supreme Court issue itso~inion on the following questions raised by the aioresaid petition" [The petition filed inthe district Judge Bennett lists the three questions set out above in the majority opinion and concludes: "You arerespectfully requested toreview the matters set forthherein and totake appropriate action or advise this court thereon." (~mphasis supplied.) Wehave here a petition properly filed with the district court together with sworn allegations tomove the districtcourt to grant a facthearing todetermine if the petitioners are entitled torelief. Instead it is here on a request that this Court sit asa districtcourt to save extraordinary expense and delay and to "act" on the petition or inthe alternative "advise" the districtcourt. First themajority through some kind of reasoning, not atallclear tome, determines that the request of Judge Bennett is not one for "advisory opinion" or "advice" as set forthabove but thisbecomes, as I understand it, a declaratory judgment action. They cite Rule 57, M.R.Civ.P., and various past declaratory judgment cases heard by thisCourt, none of which are in point inthismatter. Rule 57 requires that section 93-8901- 93-8916, R.C.M. 1947, must be observed. The firstobvious problem ishow do

we sitasa districtcourt on thispetition and'decideissues of fact without an evidentiary hearing? The facts alleged inthe petition arenot agreed factsby any means. Section 93-8911, R.C.M. 1947, seems to indicate that if facts are tobe resolved allparties must be heard or else they would not be bound. Some of the facts themajority has decided without a evidentiary hearing arethat the oppression pleaded in the petition is not sufficient towarrant relief; that certain indictments filedwerebased 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 areno grounds in law or fact to support harassment; the subpoenas aregrounded on legitimate and lawful purpose that the defendants "seek tobreak up the play before it has started, and then claim the government was offside"; that, "Most witnesses that appear before a grand jury willnever be indicted* 

## * 

## * T.he witnesses lose nothing by testifying

## * * 

## *. If a witness should later be indicted, he would be accorded the fullrange of rights granted tohim asa defendant in a criminal

case. If, atthat 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 thisprocedure could be characterized

asa declaratory judgment action it has gone farbeyond the original scope of inquiry. See National Surety Corp. v. Kruse, 121 Mont. 202, 192 P.2d 317, 319. It isalso interesting tonote that thisCourt in 1962 seemed tohold that "Petitioner failsto understand the purpose of the Declaratory Judgment Statuteswhich

arecivil and not criminal remedies". Harold Goff v. Stateof Montana and Ed Ellsworth, Jr., 141Mont. 605, 374 P.2d 862. See also In theMatter 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 ismy position that the questions by Judge Bennett have already been generallydecided by this Court. There isno law thatpermits this Court todecide facts ina vacuum which willoperate directly on individual petitioners ina district court cause. The districtcourt should firstdetermine the facts and make itsruling and until an order is entered by the districtcourt there isno proper applicationbefore thisCourt

on which themajority can render its opinion. There are no circumstances presented that would inlaw permit thisCourt to enter a declaratory judgment which would be binding on the petitioners inthe districtcourt. The request by Judge Bennett should be dismissed and thematter returned tothe districtcourt sothat the foundation petition preceding allof this orderly judicial proceeding.

JusticeMr. Justice Frank I. Haswell dissenting: I dissent. Inmy view, themajority opinion isnot a declaratory judgment, binds no one, and it furnishes no precedent in future

cases. There areno pleadings asrequired by Montana's Uniform Declaratory Judgments Act. Section 93-8901 et seq.; National Surety Corp. v. Kruse, 121Mont. 202, 192 P.2d 317. Allpersons who have or claim an interest which would be affected by the declaration have not been made parties asrequired by section 93-8911, R.C.M. 1947. The issues in thismatter 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 tovest 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, themajority has rendered an advisory opinion without legal authority todo so. The majority opinion isnot a declaratory judgment but simply a gratuitous opinion, furnishing neither guidancenor precedent, and binding

no one, not even its author. I foresee substantial mischief inthe broad, sweeping language employed. I would remand thismatter tothe districtcourt for sufficient particularization tobring it within the provisions of the Uniform Declaratory Judgments Actbefore accepting jurisdiction.

Justice