Montana contemplates a new weapon in its effort to politicize the state’s courts

February 25, 2023 4:58 am

The Great Seal of the State of Montana in the Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

House Bill 405 proposes a substantial amendment to the Montana Constitution in an attempt to create something known as a “citizen’s grand jury.” Apparently, the bill is meant to fulfill the objective of a “platform principle” adopted by the Montana Republican Party which states that: “We…support reforming the Grand Jury laws to better root out corruption, and support limiting the ability of the Montana Supreme Court to abuse its power to protect themselves.”  

If approved by the Montana Legislature, and then approved by the voters, a citizens grand jury of 11 people could be summoned in any county of Montana based only upon a petition alleging a criminal offense and accompanied by the verified signatures of one-half of one percent of the registered voters in the county.  A judge must then summon a citizens grand jury.

The judge has no discretion to determine whether impanelling a citizens grand jury is “in the public interest,” as is presently required by Montana law. Once the petition is filed, it automatically becomes the mandatory duty of the judge to summon the citizens grand jury.

In Cascade County in 2022, where there were 46,985 registered voters for the 2022 general election, the filing of a petition bearing 235 verified signatures would automatically initiate the impanelling of a citizens grand jury. In Petroleum County, where there were 381 registered voters in 2022, the petition would require only two verified signatures before triggering the mandatory grand jury impanelment.

Compulsory procedural rules are also specified in HB 405. The citizens grand jury is the sole judge of its duration, as well as the breadth and depth of its inquiry. As a result, the citizens grand jury can investigate, deliberate and indict for as long as it sees fit. 

HB 405 also authorizes the citizens grand jury to seek court orders and to conduct open proceedings where the public may present information or ask questions, as well as other proceedings, open or closed, as the grand jury deems appropriate.

In addition to the dictates of HB 405, existing Montana grand jury law requires the appointment of a “lead juror” who has the power to administer oaths and issue subpoenas. It also provides that “No person other than the jurors may be present while the grand jury is deliberating or voting,” and that “Unless advice is asked, the judge may not be present during the sessions of the grand jury.”

But wait, there’s more.

HB 405 explicitly requires that an indictment brought by a citizens grand jury “must be prosecuted by the county attorney for the county in which an offense occurred, regardless of prosecutorial discretion.” And, if that county attorney fails to prosecute within 90 days of an indictment, then he or she “may be indicted for obstruction of justice and official misconduct.”

Finally, HB 405 also provides that if the citizens grand jury is unable to obtain the prosecution of its indictment by the relevant county attorney, the grand jury may “compel prosecutorial assistance from the attorney general…or retain a private prosecutor whose fees shall be a lawful claim against the county where the alleged offense occurred.”

It doesn’t take long to visualize the inevitable chaos and spectacle that will attend the creation of a Byzantine citizens grand jury procedure; nor, but for a moment, to foresee the unlimited expense to the county within which the grand jury is impanelled. 

Sadly, with the hateful and unforgiving culture wars we witness every day, it’s easy to envision special interest groups presenting multiple petitions for the impanelment of dueling grand juries in an effort to vindicate their opposing and singular interests through grand jury investigations and indictments. And all of this is underwritten with taxpayer resources. 

That’s the desecration HB 405, if passed and approved, will enshrine into the Montana Constitution.

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Marc Racicot
Marc Racicot

Marc Racicot was the 21st governor of Montana, serving from 1993 through 2001. After that, he was the National Republican Party Chairman for two years, and was the head of the committee to re-elect President George W. Bush.