The idea of changing state law, or the state Constitution, to allow citizens to convene grand juries in their counties appears to be gathering steam in some conservative circles of Western Montana. The concept would allow citizens to summon juries comprised of members of the public to investigate alleged crimes – not just judges, as is the case currently.
With a Bitterroot man crafting language for a proposed ballot initiative and a Hungry Horse man forming a group to work on draft legislation, a measure allowing for citizen grand juries, in one form or another, seems poised for broader consideration in the coming year – by either the public or, possibly, lawmakers.
But while supporters of the idea consider it a return to more Constitutional principles, at least one legal expert considers the draft language of the proposed ballot initiative concerning, with the potential to devolve the state’s legal system into “frontier justice.”
“I think that the proposed initiative has really serious problems,” Elizabeth Griffing, the legal director of the American Civil Liberties Union (ACLU) in Montana and an instructor of state Constitutional law at the University of Montana’s law school, said. “When you have a citizen grand jury, you’re really moving into frontier justice and not the rule of law and that is obviously of great concern.”
The proposed initiative is sponsored by Duane A. Sipe of Stevensville. In its draft form, the initiative would amend the Montana Constitution allowing 0.5 percent of the registered voters in a county to sign and submit a petition calling for a grand jury. Composed of 11 people, this grand jury would be obligated to investigate and consider the case advanced by those who signed the petition, but the grand jury would have sole control over the length and depth of the inquiry.
While federal grand juries are closed to the public, Sipe’s grand jury system would be open to the public. If eight members of the grand jury agree to bring an indictment, it must be prosecuted where it occurred by the county attorney. Should a county attorney fail to prosecute an indictment brought by a citizen grand jury within 90 days, the attorney may be indicted for obstruction of justice and criminal misconduct. If the county attorney refused to file charges, the citizen grand jury could then seek assistance from the state attorney general, or hire a private attorney and charge the county for it.
Sipe’s initiative would take effect immediately, upon approval by the electorate, but just to get it on the ballot supporters of the measure would have to gather the signatures of more than 48,000 voters in 40 of Montana’s 100 House districts to qualify.
Because the prospect of gathering so many signatures across the state can prove so daunting, Richard Stevens, of Hungry Horse, is forming a committee within the new conservative political group in the Flathead, Freedom Action Rally, to work on drafting legislation to be carried in the 2011 session. Sen. Verdell Jackson, R-Kalispell, is involved in the group and helped Stevens plan a meeting on the subject earlier this week.
Unlike Sipe, Stevens doesn’t necessarily agree with the idea of a ballot initiative for a measure such as the citizen grand jury.
“It’s still asking for permission from our government and actually, it should be the other way around,” Stevens said. “We’ve got too much government control over our individual rights.”
Stevens views the concept of a citizen grand jury as one that would take more power out of the hands of individual judges and place it in the hands of the public, chiefly as a way to check the power of public officials.
“Select prosecution is what we’ve got going on right now,” he added. “When you’ve got one person to call a grand jury, and it’s at his discretion, it’s totally impossible – you or I couldn’t do it.”
Despite his position as a public official, Jackson agrees that citizen grand juries could serve as a much-needed restraint on government officials, particularly those who aren’t elected.
“It’s sprouting up now because people are frustrated that they don’t have a way of dealing with public officials,” Jackson said. “What can we do about judges that seem to have an agenda? It gives the citizens a means where they can challenge politicians that are breaking the Constitution, that are violating state law.”
Jackson, however, isn’t sure legislation is the best way to advance a measure allowing for a citizen grand jury, since any bill that would amend the Constitution requires a supermajority in the Legislature, which is, by design, difficult to achieve. He is excited, not only about the citizen grand jury committee forming in Freedom Action Rally, which grew out of the summer’s “Tea Party” rallies, but the other issues the group is tackling, a list he said includes: property rights and property taxes; gun rights; health care; states’ rights; and a proposed anti-abortion, or “personhood” amendment.
The notion of citizen grand juries is popular within the Montana Constitution Party, of which Richardson is a member. Kandi Matthews-Jenkins, vice chair of the Montana Constitution Party and an unsuccessful candidate for several public offices in Missoula, sees Sipe’s proposed ballot initiative as a peaceful way for “people to take back control” from the federal government and “it affords the same protection for those that come forward to testify as a government grand jury would.”
“I don’t think it would be seated in the realm of day-to-day law and order; that’s not what it’s about,” she added. “It’s mainly directed at Constitutional issues, Constitutional law and any kind of a public concern.”
But even in these early stages, the concept of a citizen grand jury is drawing critics. Griffing, of the ACLU, said one troubling aspect of citizen grand juries is how legal issues can turn into a political agenda by the people convening the grand jury.
As an example, she cited the formation of a citizen grand jury in Kansas, which sought the medical records of George Tiller, the abortion doctor murdered in May. In Georgia, a group of “birthers,” those who believe President Barack Obama was not born in the United States and so is ineligible to hold the office, formed a citizen grand jury in March to indict Obama, after previous legal moves were stymied by the courts.
“To my mind, that is one of the big problems; the criminal process starts to be used to further a political agenda,” Griffing said. “We have express Constitutional protections against that.”
Furthermore, Griffing is concerned the draft language of Sipe’s initiative fails to take into account what would constitute probable cause for gathering signatures to form a grand jury. She also questions whether a public grand jury investigation could conflict with privacy rights granted by the Montana Constitution and become, “almost a witch hunt.”
In an evaluation of Sipe’s initial draft ballot language, an attorney for the Montana Legislative Services Division wrote that the proposed measure would also impose significant operating costs on counties, particularly the section allowing for citizen grand juries to hire private prosecutors at the county’s expense. State statute limits county budgets.
How any proposed measures allowing for citizen grand juries will fare in the year running up to the 2010 elections and 2011 Legislature remains to be seen. But at this point, those who would arguably be impacted the most by such a measure – county attorneys – are keeping mum. Of the three Western Montana county attorneys contacted by the Beacon for comment on the citizen grand jury measures, two did not return calls. Flathead County Attorney Ed Corrigan said he was not familiar with the issue.
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