No. 13268 TN THE SUPREME COURT OF THE STATE OF MONTANA 1976

STATE ex 

### rel., JOHN S. FORSYTHE, Relator,

DISTRICT JUDGE ALFRED B. COATE, Judge of the Sixteenth Judicial District, County of Rosebud; MR. GENE HUNTLEY, Attorney atLaw; and JOHN DOE, FOREMAN of the Rosebud County Grand Jury,

ORIGINAL PROCEEDING: Counsel of Record: For Relator: Eugene A. Lalonde argued, Billings, Montana ~ohnd. Forsythe For Respondents: Hon. Alfred B. Coate, District Judge, argued, Forsyth,

Montana Gene Huntley argued, Baker, Montana

Submitted

### : February 

### 24, 1976 Decided:

## MAP

## 12

## 1976

### PER CURIAM: This is an original application by the Rosebud County attorney for a writ of prohibition or other appropriate relief

(1) to disqualify the district judge from sitting upon a grand jury investigation, and (2) to have a special prosecutor appointed from outside the sixteenth judicial district to assist the grand jury. Relator is John S. 

### Forsythe, the county attorney of Rosebud County,Montana. Respondents are District Judge Alfred B. 

### Coate, one of the district judges of the sixteenth judicial district;Gene Huntley, the specialprosecutor, an attorney residingwithin the sixteenth judicial district in Fallon County, Montana; and Charles Eustice, foreman of the Rosebud County grand jury. On January 6, 1976, Judge Coate called and empaneled

a grand jury in Rosebud County to examine the county's criminal justice system. Gene Huntleywas named as special prosecutor because the county attorney's officewas one of the subjects of investigation. According to the specialprosecutor's affidavit, he has proceeded with an investigation of several matters which he intends to present to the grand jury if permitted to do so, all of which involve the county attorney. It appears from statements made upon oral argument that no testimony or evidence has been takenby the grand jury to date. 

### On February 13, 1976, the instant proceeding was filed

on behalf of the county attorney and an ex parte presentation made. The gist of the county attorney's application is that (1) Judge Coate acted in excess of his lawful authority in sitting upon the grand jury's investigation,and (2) the grand jury and Judge Coate acted in excess of their lawful authority in appointing Gene Huntley to serve as special prosecutor before the grand jury.This Court ordered an adversary hearing todetermine whether

we would acceptjurisdiction. We ordered respondents to answer, plead, and filelegal memoranda. The adversary hearing was held on February 

### 23, 1976. Atthe outset, we declinedjurisdiction of the first issue. We acceptedjurisdiction of the second issue, viz, the legality of the appointment of Gene Huntley as specialprosecutor. Relator contends the districtjudge has no power and authority toappoint a special prosecutor. He argues that here the districtjudge substantially participated in the selection of the special prosecutor and accordingly exceeded his lawful authority. He seeks by 

### writ of prohibition or other appropriate relief tohave the grand jury request the attorney general to appoint a specialprosecutor from outside the sixteenthjudicial district

# . The foundation of relator's position 

### ishis contention that the statutoryprovisions relating to the appointment of a special prosecutor aremandatory and exclusive. He refers the Court to sections 95-1405(e) and 95-'1406(c), R.C.M. 1947. Section 95-1405 relates to the powers and duties of a grand jury and provides inpertinent part: "(e) If, in thejudgment of the grand jury, the services of an expert arenecessary, the grand jury may employ one ormore at an agreed compensation, tobe first approved by the court. If, in the judgment of the grand jury, the services of assistants to such expert arerequired, the grand jury may employ such assistants, ata compensation tobe agreed upon and approved by the court.II Section 95-1406 relates towhen and fromwhom the grand jury may ask advice and who may be present during 

### its sessions. This statuteprovides inpertinent part: "(c) Where requested to do soby the grand jury of any county, the attorney general or county attorney may employ special counsel and investigators, whose duty it shallbe toinvestigate and present the evidence in such investigation to such grand jury. IISection 95-1405(e) ispermissive and not mandatory.

Il 11 Its language is may", not must" or "shall". The comment of the Criminal Law Commission to this statute supports this construction: "The provision 

### is substantially the same as existing law, however it 

### ispermissive rather than mandatory and it provides for assistants and experts to aid the grand jury.

## " Being permissive, it canhadlybe construed as the exclusive method of appointing a special prosecutor, particularly inview of the provisions of section 95-1406(c) relating tothe appointment of a specialprosecutor by the attorney general. The same can be said of section 95-1406(c). The language used ispermissive

# -- 11the attorney general or county attorney employ special counsel and investigators". (Emphasis added), This language isneither mandatory nor exclusive. A request by the grand jury to the attorney general or county attorney 

### is



### a condition precedent to the appointment of a specialprosecutor by either. This brings us to thebasic question

# -- May the district judge appoint the special prosecutor? Admittedly no express power isgranted the districtjudge toappoint a specialprosecutor. 

### Is such power necessarily implied from the express power granted? The districtjudge isexpressly granted these powers relating togrand juries, among others, by statute: (1) The discretionary power to summon a grand jury when he considers it necessary, section 95-1401. (2) Appointment of a grand jury foreman, section 95-1403. 

### (3) Instructing and charging the grand jury, sections 95-1404; 95-1406(d). (4) Approval of grandjury expenses and claims, section 95-1405(e)

## ,(f)

# .(5) Advising the grand jury when requested, section 95-1406(a). 

### (6) Subpoena of witnesses, section 95-1407. (7) Hearing indictments of the grand jury, section 95-1410(b) (1) and acting on them, section 95-1410. The intent of the legislature to place the districtjudge in overall charge of grand jury proceedings 

### is apparent from the foregoing grant of powers. In the exercise of those express powers, the districtjudge must have the implied power to appoint

a qualified specialprosecutor where, ashere, the county attorney 

### is disqualified from acting as prosecutor. Otherwise grand jury proceedings in such case could be brought toa halt and the entire grand jury investigation frustrated. Nothing in this case suggests in any way an abuse of discretionby the districtjudge. The grand jury here made the appointment whether recommended by the districtjudge ornot. Whether thecounty attorney approves of this choice isentirelybeside the point because under the circumstances here he has no power of appointment. Accordingly, the petition of the county attorney 

### is dismissed.