Rep. Lola Sheldon-Galloway, R-Great Falls, answers questions from the House Judiciary Committee on her House Bill 405 on Monday, March 13, 2023. (Photo by Blair Miller, Daily Montanan)
A bill heard in the House Judiciary Committee Monday seeks to send a proposal to voters in the 2024 election that would amend the Montana Constitution to allow groups of citizens to form grand juries which could return indictments county attorneys would be forced to prosecute lest they be indicted themselves.
House Bill 405, sponsored by Rep. Lola Sheldon-Galloway, is the second from the Great Falls Republican this session that seeks to put the citizen grand jury mechanism in place in either law or the constitution.
The first, House Bill 589, was tabled 19-0 in the House Judiciary Committee in late February and was not brought back before the transmittal deadline. The language of both mirrors a failed 2010 initiative that never made the ballot.
At Monday’s hearing, the Broadwater County attorney and a representative for the Montana County Attorneys’ Association, among others, said it was bad policy that shouldn’t make it out of committee.
“It is not a protection for the citizens. What it is, is a forced prosecution. I would label that an inquisition, not a check on power of the government,” said Brian Thompson, a lobbyist for the Montana County Attorneys’ Association.
Under Montana law and its constitution, only a district judge can impanel a grand jury, which hears evidence to determine whether prosecutors can indict a person on charges.
Sheldon-Galloway’s amendment proposal, if it is passed by voters in November 2024, would, in its introduced form, change the Constitution to allow one-half of 1% of the registered voters in a county to sign a petition that could force a district court to summon its grand jury for proceedings. Sheldon-Galloway said she hoped to amend the bill to make the threshold 1% instead.
In Lewis and Clark County, which has roughly 52,000 registered voters, it would require 260 petition signatures as the bill is currently written and 520 under the purported amended version.
But in smaller counties, like Petroleum, which has 381 registered voters, a grand jury could be convened with just two signatures under the current bill and four if the bill is amended.
That citizen-summoned grand jury would have purview over the “duration and the breadth and depth of its inquiry” and would allow members of the public “to present information or ask questions.”
Since the bill is a proposed constitutional amendment, two-thirds of the legislature would have to agree to it before it is sent to voters next year. The committee did not take action on the bill Monday.
The proposal says the county attorney “must” prosecute any indictment the grand jury approves, and if they do not do so within 90 days of it being returned, they would be liable to indictment for obstruction of justice and official misconduct.
The citizen-summoned grand jury would also be able to compel the state attorney general or a private prosecutor to pursue the indictment if the county attorney does not. And it would be able to hire independent counsel of its own and “seek court orders to remedy situations under its investigation.”
“This bill is very, very bad policy for a lot of reasons. This is not a constitutional amendment that this legislature wants to be known for,” Broadwater County Attorney Cory Swanson told the committee.
Reading from remarks someone else prepared for her – and mispronouncing “indictment” multiple times – Sheldon-Galloway explained how she believed grand juries are not assigned to any of the three branches of government and that the panel of citizens are given the authority to address corruption and wrongdoing.
“The grand jury is an institution of ‘we the people,’ not our civil servants,” she said. “It is the people’s sword and shield because it works for the people to arrest evildoers and to protect any individual against corrupt, vindictive and overzealous governments.”
Bart Crabtree, the president of the Montana State Council on Judicial Accountability who has advocated for both of Sheldon-Galloway’s bills, was the main proponent of HB405, along with three others. One of the others said she was part of a group called Tactical Civics, which is pushing the citizen-summoned grand jury idea in multiple states.
“It is every Montana citizen’s fundamental constitution right to a county-by-county grand jury. This is about ‘we the people’ invoking our power to our right,” Crabtree said.
His group, which on its website says aims to “decry a judiciary that is self disciplined and essentially their own arbitrator of whether it has been corrupted,” claims the Tenth Amendment to the U.S. constitution vests the power in the people to conduct independent state judicial disciplinary proceedings.
“The grand jury’s purpose is not only to investigate possible criminal conduct, but to act as a protector of the citizens against arbitrary and oppressive government action,” he told the committee Monday.
Sharlo Lilly, who said she was a teacher in Cascade County and with the Tactical Civics group, called on the lawmakers to send the proposal to voters “so rooms in every courthouse can be full of grand juries bringing justice.”
But opponents of the bill said the measure would lead to vigilantism, overcrowded courts already lacking resources, never-ending court battles over grudges and vendettas, and attempted prosecutions of public figures with whom a small group of citizens disagreed.
Richard Liebert, a Cascade County rancher and former Democratic House candidate, said the measure could lead to “a mind-boggling descent into chaos.”
“Let’s not turn our nation over to the mob,” he said. “We have a more deliberative process. If people don’t like the way judges are operating or attorneys are operating, go have an election like we always do.”
Swanson, the Broadwater County attorney, explained he typically uses a criminal information backed by probable cause and sworn affidavits in order to pursue prosecutions, which judges have to sign off on before a case moves forward if it does not go before a grand jury. He said the mechanisms for corruption inquiries already exist. Further, he said, the measure would do away with prosecutorial discretion.
“According to this, no matter how innocent I think they are, no matter how justified they may have been in use-of-force, no matter what privacy rights were violated in obtaining that evidence, I cannot use my own sense of justice and discretion to say, ‘This person shouldn’t be guilty of this crime,’” he said. “… That alone is a reason that this committee should reject it.”
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