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 at Law; 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 special prosecutor, an attorney residing within 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 Huntley was named as special prosecutor because the county attorney's office was one of the subjects of 

investigation. According to the special prosecutor'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 taken by the grand jury to da te. 

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 to determine whether 

we would accept jurisdiction. We ordered respondents to answer, 

plead, and file legal memoranda. 

The adversary hearing was held on February 23, 1976. 

At the outset, we declined jurisdiction of the first issue. We 

accepted jurisdiction of the second issue, viz, the legality of 

the appointment of Gene Huntley as special prosecutor. 

Relator contends the district judge has no power and 

authority to appoint a special prosecutor. He argues that here 

the district judge 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 to have the grand jury request the attorney general to 

appoint a special prosecutor from outside the sixteenth judicial 

district . 

The foundation of relator's position is his contention 

that the statutory provisions relating to the appointment of a 

special prosecutor are mandatory 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 in pertinent part: 

"(e) If, in the judgment of the grand jury, the 

services of an expert are necessary, the grand jury 

may employ one or more at an agreed compensation, 

to be first approved by the court. If, in the 

judgment of the grand jury, the services of assistants 

to such expert are required, the grand jury may employ 

such assistants, at a compensation to be agreed upon 

and approved by the court. I I 

Section 95-1406 relates to when and from whom the grand 

jury may ask advice and who may be present during its sessions. 

This statute provides in pertinent part: 

"(c) Where requested to do so by the grand jury of 

any county, the attorney general or county attorney 

may employ special counsel and investigators, whose 

duty it shall be to investigate and present the 

evidence in such investigation to such grand jury. I I 
Section 95-1405(e) is permissive and not mandatory. 

I l 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 is permissive 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 in view 

of the provisions of section 95-1406(c) relating to the appointment of a special prosecutor by the attorney general. 

The same can be said of section 95-1406(c). The language 

used is permissive -- 11 the attorney general or county attorney 

employ special counsel and investigators". (Emphasis added), 

This language is neither 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 special prosecutor 

by either. 

This brings us to the basic question -- May the district 

judge appoint the special prosecutor? 

Admittedly no express power is granted the district judge 

to appoint a special prosecutor. Is such power necessarily 

implied from the express power granted? 

The district judge is expressly granted these powers 

relating to grand 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 grand jury 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 district judge 

in overall charge of grand jury proceedings is apparent from the 

foregoing grant of powers. In the exercise of those express 

powers, the district judge must have the implied power to appoint 

a qualified special prosecutor where, as here, the county attorney 

is disqualified from acting as prosecutor. Otherwise grand jury 

proceedings in such case could be brought to a halt and the 

entire grand jury investigation frustrated. Nothing in this case 

suggests in any way an abuse of discretion by the district judge. 

The grand jury here made the appointment whether 

recommended by the district judge or not. Whether the county 

attorney approves of this choice is entirely beside the point 

because under the circumstances here he has no power of appointment. 

Accordingly, the petition of the county attorney is 

dismissed.