INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

WILLIAM T

# .KELLY

## , Plaintiff, VS

# . GMNDJURY 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, inand 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, 1976Mr. 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 testifybefore 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 grandjury torelator 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 forMay 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 relabr'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 hismotion to quash. Rather, the districtcourt submitted the issues to this Court by its petition of June 23, 1976, No. 13410, requesting,ineffect, a declaratoryjudgment. Atthat time, relator renewed his application to this Court, praying for the following relief: (1) an order to show cause why

a writof 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 themerits of this application. On July 1, 1976 this Court setboth matters for oral argument and stayed allproceedings 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 grandjury, and statutory and constitutionalrights of relator are raised by relator's motion to the district court and his application here. However, allcontentions 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 legalvalidity of the grand jury? 3. Isrelator 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 oralargument that ithas granted relator transactional immunity from prosecution by virtue of itsorder of June 24,pursuant to section 95-1807, K.C.M. 1947, which provides:

IICompelling testimony: immunity from prosecution. Before or during trial inanyjudicial proceeding ajustice of the supreme court orjudge 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, inaccordance with this section, inany 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'hisright, under the Fifth and Fourteenth Amendments of the United States Constitution and Article 11, Section 25, 1972Montana Constitution, to refuse to testify against himself before the grandjury. His principal arguments are that thewords "grand jury" are not contained in the statute, and the functioning of a grand jury isnot

a "trial" as that word isused therein. Relator's construction of section 95-1807 

### is overly technical. In Statev. 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 pretrialhearing because such hearing was not a "judicial proceeding". This Court held the subpoena power of a court relates to the pretrialhearing. In defining a 'Ijudicial proceeding", the Court inLambert quoted with approval from a North Carolina

case to the effect that ajudicial proceeding "'includes every ~roceeding of a judicial nature before a competent court orbefore

a tribunal or officer clothed withjudicial or quasi-judicial powers

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

### is a part of the court and must conduct itself incompliancewith the statutes and Constitution in the same manner as any other part of thejudicial system." Thus, while a grandjury is an inquisitorialbody, its proceedings are generally regarded asjudicial innature. 38 Am Jur 2d, Grand Jury, $1. Section 95-1807 states that if one 

### "is required to give testimony orproduce evidence

# *** in any investigation or proceeding" he cannot be prosecuted therefor. The use of the word "investigation" isnot inadvertent; a grandjury inquiry 

### is

an investigationwithin the scope of a judicial proceeding. Relator relies upon Statev. Saginaw, 124Mont. 225, 220 P. 2d 1021, inasserting that immunity statutes do not apply to grand

. jury witnesses. Saginaw 

### is distinguishable for two reasons. First, the statute there involvedwas different, and the relation of certainwords not contained in section 95-1807 was held to exclude grand juries. Second, the decisionrests firmly on the fact the defendant voluntarily testifiedbefore the grand jury without objection and without assertinghis right toremain silent. In the instant case relatorhas asserted that right and the districtcourt has ordered him to testifyunder immunity from prosecution, pursuant to the applicable statute. Finally, the policy and purpose of immunity statutes is to aid prosecuting officers inthe apprehension of criminals. They render witnesses' privilege against self-incrimination inapplicable with respect tomatters about which they testify, thus inducing witnesses to testify and turn state's evidence. Statev. Lambert, supra.Therefore, we hold the district court's order tocompel testimony pursuant to section 95-1807 effectively granted relator transactional immunity from prosecution. Relator next contends that he has standing toprosecute this action because the grandjury 

### is illegaland iswasting public funds. He relies on Stateex rel. Adami 

### v. District Court, 124Mont. 282, 287, 220 P.2d 1052, which held that a taxpayer of the county inwhich a grandjury sitshas standing to seek a 

### writ of prohibition toend litigationand save expense when a grand jury actswithout or in excess of 

### itsjurisdiction. In that original proceeding, the relator sued on behalf of himself and all other county taxpayers inorder toprohibit the further expenditure of public funds. A fairreading of the application in the instant

case shows that such isnot the purpose of thisrelator. His fleetingreference toAdami does not establish a claim thathis purpose isto cease thewaste of taxpayer's money. Therefore, relator does not have standing to challenge the grandjury's existence on the basis of Adami. The substance of relator's application 

### is a broad and detailed attackupon the composition and conduct of the grand jury under the direction of the attorney general's staff. He asserts the grand jury operation, directed athim through the district court's order of June 24, threatens irreparable injury tohis stateand federal constitutional rights, including hisright against self-incrimination, his right to due process of law, and hisright to protection from unreasonable searches and seizures. Relator seeks a protective orderwhich willaffordhim the opportunity toestablish the illegality of thegrand jury.

### The asserted privilege against self-incrimination forms the principalwedge with which relator attempts to gain access to the courts for a determination of themerits of his illegal grand jury claim. From this purported privilege flowall of relator's claims ofviolation of due process of law, forhe contends that with the protection of the privilege a hearing is required on the propriety of the grand jury's formationand actions. Further alleged due process violations against relator are related to the selection and allegedmanipulation of the grand jury and its witnesses. Compare: 

### A et al. v. DistrictCourt of Second Judicial Districtv. Attorney 

### Q., Intervenor, Colo. -3 

### 550 P.2d 315. We have alreadyheld relatorhas effectively been granted transactional immunity from prosecution on the basis of any testimony or physical evidencewhich he might givebefore 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 criminalaction. He cannot be a putative defendant in any criminal action for offenses concerningwhich he may testify. As a mere witness before a grand jury, immune from its indictmentpowers, he is not an adversary to the prosecutionwith the right ofnotice 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 rightswhich gives him standing to attack the legality of the grand jury.No case citedby relator in support of his standing argument is analogous to the factshere. Relator is not a defendant; cannot be 

### a defendant in thismatter (save forcontempt orperjury, section 95-1807, R.C.M. 1947); has shown no injury tohimself; and, can claimno privilegewhich protects him from testifying. Inview of the foregoing, inNo. 13438, the district court's order of June 24, 1976 tocompel testimony isvalid and of full force and effect. InNo. 13439, thewritof prohibition isdenied and this matter is remanded to the districtcourt for further proceedings. Remittitur shallissue forthwith inboth cases. 

### &JA-$?

Justice 

# r%&p

We Concur: 

# / 

# PY*b

Jus ices.

### Mr. Justice Gene 

### B. Daly dissenting: 

### I dissent. 

### Ido not disagree that some of thematters raised by the petitioner may be premature. Hemay not be considered a prospective defendant. The transactional immunity may protect all of his rights fromunlawful invasion. He may or may not have standing to object inhis present posture. However,my problem arises from the fact that we aremaking a 

### fact determination without a proper record. These facts shouldbe determined by the district court upon a hearing before the district court. 

### Itwould 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.

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