IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

WILLIAM T . KELLY , Plaintiff, 

VS . GMND JURY OF LEWIS AND CLARK COUNTY, 

STATE OF MONTANA; and ROBh'RT L. WOODAHL, 

Attorney General of the State of Montana, 

Defendant. 

THE STATE OF MONTANA on the relation 

of WILLIAM T. KELLY, 

Relator, 

VS . 

THE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and for 

the County of Lewis and Clark, and the HONORABLE 

GORDON R. BENNETT, Presiding Judge, 

Respondent. 

No. 13438 

No. 13439 

ORIGINAL PROCEEDING : 

Counsel of Record : 

For Plaintiff and Relator: 

Gordon R. Bennett, District Judge, Helena, Montana 

Patrick J. Foley argued, Billings, Montana 

For Defendant and Respondent: 

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

Montana 

Thomas Budewitz, Assistant Attorney General, argued, 

Helena, Montana 

Submitted: July 7, 1976 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Relator seeks a writ of prohibition and an order from this 

Court in substance vacating the district court's order compelling 

him to testify before the Lewis and Clark County grand jury until 

a hearing has been held on the legality and jurisdiction of the 

grand jury. 

These proceedings arise from the issuance of subpoenas 

by the Lewis and Clark County grand jury to relator William T. 

Kelly, ordering him to appear, testify, and produce physical evidence 

requested by the attorney general before that investigatory body 

on May 18, 1976. Relator filed an action against the grand jury 

and the attorney general in the district court and moved to quash 

the subpoenas. The district court set a hearing on relator's 

motion for May 28, 1976; but that hearing was set aside by order 

of this Court on June 18, State ex rel. Woodahl v. District Court, 

Mont . Y P.2d , 33 St.Rep. 537, for the reason 

that rela br's petition was not verified. 

On June 24, 1976 a special assistant attorney general filed 

in the district court an affidavit and motion to compel the testimony of relator before the grand jury. On the same day, June 24, 

District Judge Gordon R. Bennett issued an order to compel relator's 

testimony and to produce physical evidence before the grand jury, 

pursuant to section 95-1807, R.C.M. 1947. Relator again moved for 

a hearing on his motion to quash the subpoenas which were returnable 

on July 7, 1976. This motion was supported by affidavit and verified. 

The district court has not considered nor acted upon relator's 

motion for a hearing on his motion to quash. Rather, the district 
court submitted the issues to this Court by its petition of June 23, 

1976, No. 13410, requesting, in effect, a declaratory judgment. 

At that time, relator renewed his application to this Court, 

praying for the following relief: (1) an order to show cause why 

a writ of prohibition or other appropriate writ should not issue 

to the district court and the Hon. Judge Bennett, requiring that 

the order of June 24 to compel testimony be permanently set aside 

and vacated; and (2) an order staying said district court order 

until such time as this Court has decided the merits of this 

application. 

On July 1, 1976 this Court set both matters for oral 

argument and stayed all proceedings in the district court until 

further order of this Court. On July 7, 1976 oral argument was 

heard and the Court took the matter under advisement. 

Many issues concerning the conduct of the attorney general's 

office, the impanelling of the grand jury, and statutory and constitutional rights of relator are raised by relator's motion to 

the district court and his application here. However, all contentions can be decided by the resolution of three questions: 

1. Does the district court's order of June 24, 1976 effectively 

grant relator transactional immunity from prosecution under section 

95-1807, R.C.M. 1947? 

2. Does relator have standing to question the legal validity 

of the grand jury? 

3. Is relator required to testify pursuant to the grand jury 

subpoenas and the district court order of June 24, 1976? 

Respondent through the attorney general, has maintained by 

affidavit, brief and oral argument that it has granted relator transactional immunity from prosecution by virtue of its order of June 24, 
pursuant to section 95-1807, K.C.M. 1947, which provides: 

I I Compelling testimony: immunity from prosecution. 

Before or during trial in any judicial proceeding 

a justice of the supreme court or judge of the 

district court, upon request by the attorney prosecuting or counsel for the defense, may require 

a person to answer any question or produce any 

evidence that may incriminate him. If a person is 

required to give testimony or produce evidence, 

in accordance with this section, in any investigation 

or proceeding he cannot be prosecuted or subjected to 

any penalty or forfeiture, other than a prosecution or 

action for perjury or contempt, for or on account of 

any transaction, matter or thing concerning which he 

testified or produced evidence." 

Kelator contends section 95-1807 cannot confer immunity 

upon a grand jury witness, and therefore, he may assert'his right, 

under the Fifth and Fourteenth Amendments of the United States 

Constitution and Article 11, Section 25, 1972 Montana Constitution, 

to refuse to testify against himself before the grand jury. His 

principal arguments are that the words "grand jury" are not contained in the statute, and the functioning of a grand jury is not 

a "trial" as that word is used therein. 

Relator's construction of section 95-1807 is overly 

technical. In State v. Lambert, Mont . , 538 P.2d 1351, 

1352, 32 St.Rep. 805, 807, defendant contended he could not be 

compelled to testify after grant of immunity under section 95-1807 

in a pretrial hearing because such hearing was not a "judicial 

proceeding". This Court held the subpoena power of a court relates 

to the pretrial hearing. In defining a 'I judicial proceeding", 

the Court in Lambert quoted with approval from a North Carolina 

case to the effect that a judicial proceeding "'includes every 

~roceeding of a judicial nature before a competent court or before 

a tribunal or officer clothed with judicial or quasi-judicial 

powers . l ll In State ex rel. Adami v. District Court, 124 Mont. 282, 
287, 220 P.2d 1052, the Court said: 

"A grand jury is a part of the court and must 

conduct itself in compliance with the statutes 

and Constitution in the same manner as any other 

part of the judicial system." 

Thus, while a grand jury is an inquisitorial body, its proceedings are generally regarded as judicial in nature. 38 Am 

Jur 2d, Grand Jury, $1. 

Section 95-1807 states that if one "is required to give 

testimony or produce evidence * * * in any investigation or 

proceeding" he cannot be prosecuted therefor. The use of the 

word "investigation" is not inadvertent; a grand jury inquiry is 

an investigation within the scope of a judicial proceeding. 

Relator relies upon State v. Saginaw, 124 Mont. 225, 220 P. 

2d 1021, in asserting that immunity statutes do not apply to grand 

. jury witnesses. Saginaw is distinguishable for two reasons. 

First, the statute there involved was different, and the relation 

of certain words not contained in section 95-1807 was held to 

exclude grand juries. Second, the decision rests firmly on the 

fact the defendant voluntarily testified before the grand jury 

without objection and without asserting his right to remain silent. 

In the instant case relator has asserted that right and the 

district court has ordered him to testify under immunity from 

prosecution, pursuant to the applicable statute. 

Finally, the policy and purpose of immunity statutes is to 

aid prosecuting officers in the apprehension of criminals. They 

render witnesses' privilege against self-incrimination inapplicable 

with respect to matters about which they testify, thus inducing 

witnesses to testify and turn state's evidence. State v. Lambert, 

supra. 
Therefore, we hold the district court's order to compel 

testimony pursuant to section 95-1807 effectively granted relator 

transactional immunity from prosecution. 

Relator next contends that he has standing to prosecute 

this action because the grand jury is illegal and is wasting 

public funds. He relies on State ex rel. Adami v. District Court, 

124 Mont. 282, 287, 220 P.2d 1052, which held that a taxpayer of 

the county in which a grand jury sits has standing to seek a writ 

of prohibition to end litigation and save expense when a grand 

jury acts without or in excess of its jurisdiction. In that 

original proceeding, the relator sued on behalf of himself and all 

other county taxpayers in order to prohibit the further expenditure 

of public funds. A fair reading of the application in the instant 

case shows that such is not the purpose of this relator. His 

fleeting reference to Adami does not establish a claim that his 

purpose is to cease the waste of taxpayer's money. Therefore, 

relator does not have standing to challenge the grand jury's 

existence on the basis of Adami. 

The substance of relator's application is a broad and 

detailed attack upon the composition and conduct of the grand jury 

under the direction of the attorney general's staff. He asserts 

the grand jury operation, directed at him through the district 

court's order of June 24, threatens irreparable injury to his 

state and federal constitutional rights, including his right 

against self-incrimination, his right to due process of law, and 

his right to protection from unreasonable searches and seizures. 

Relator seeks a protective order which will afford him the opportunity to establish the illegality of the grand jury. 
The asserted privilege against self-incrimination forms 

the principal wedge with which relator attempts to gain access 

to the courts for a determination of the merits of his illegal 

grand jury claim. From this purported privilege flow all of relator's 

claims of violation of due process of law, for he contends that 

with the protection of the privilege a hearing is required on the 

propriety of the grand jury's formation and actions. Further 

alleged due process violations against relator are related to the 

selection and alleged manipulation of the grand jury and its 

witnesses. Compare: A et al. v. District Court of Second Judicial 

District v. Attorney Q., Intervenor, Colo. -3 550 P.2d 315. 

We have already held relator has effectively been granted 

transactional immunity from prosecution on the basis of any 

testimony or physical evidence which he might give before the 

grand jury. With the granting of immunity comes the dissolution 

of the privilege against self-incrimination. Section 95-1807, 

R.C.M. 1947. Without the protection of such privilege, and with 

immunity from prosecution, all of relator's claimed violations of 

due process of law are for naught. He is not a defendant in any 

criminal action. He cannot be a putative defendant in any criminal 

action for offenses concerning which he may testify. As a mere 

witness before a grand jury, immune from its indictment powers, 

he is not an adversary to the prosecution with the right of notice 

and hearing, and he has no legal interest in the grand jury's 

composition or operation. In short, relator has alleged no present 

or potential injury to his constitutional rights which gives him 

standing to attack the legality of the grand jury. 
No case cited by relator in support of his standing 

argument is analogous to the facts here. Relator is not a 

defendant; cannot be a defendant in this matter (save for contempt or perjury, section 95-1807, R.C.M. 1947); has shown no 

injury to himself; and, can claim no privilege which protects 

him from testifying. 

In view of the foregoing, in No. 13438, the district 

court's order of June 24, 1976 to compel testimony is valid and 

of full force and effect. 

In No. 13439, the writ of prohibition is denied and this 

matter is remanded to the district court for further proceedings. 

Remittitur shall issue forthwith in both cases. 

&JA-$? Justice r%&p 

We Concur: / 

PY*b Jus ices. 
Mr. Justice Gene B. Daly dissenting: 

I dissent. 

I do not disagree that some of the matters raised by the 

petitioner may be premature. He may not be considered a prospective 

defendant. The transactional immunity may protect all of his 

rights from unlawful invasion. He may or may not have standing 

to object in his present posture. However, my problem arises 

from the fact that we are making a fact determination without a 

proper record. These facts should be determined by the district 

court upon a hearing before the district court. It would be my 

position that if the petitioner claims a violation of a constitutional right by a proper petition before the district court, he 

has standing to be heard and his complaint determined by that 

court. There is never any unnecessary delay in granting the right 

to be heard on any legitimate motion before any court in a judicial 

proceeding. 

P4 &