(1) Criminal offenses within the jurisdiction of any court inferior to the district court shall be prosecuted by complaint. All criminal actions in district court, except those on appeal, shall be prosecuted either by information, after examination and commitment by a magistrate or after leave granted by the court, or by indictment without such examination, commitment or leave.

(2) A grand jury shall consist of eleven persons, of whom eight must concur to find an indictment. A grand jury shall be drawn and summoned only at the discretion and order of the district judge.

History

Sources

The Constitution and the Supreme Court

U.S. Constitution, Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . U.S. Const. amend. V

This part of the Fifth Amendment is not binding on the states as it has not been incorporated via the Fourteenth Amendment. The Supreme Court ruled in 1884 that the question of grand juries as an essential right are state constitutional matters, allowing the states to dispense with grand juries altogether if they wish.Bill of Rights, Montana Constitutional Convention Studies, Report No. 10, p. 155.Hurtado v. California, 110 U.S. 516 (1884). This provides the basis for the debate surrounding the necessity or adequacy of the grand jury in Montana's Constitutions.

1884 Proposed Constitution

Article I Sec. 8: That until otherwise provided by law, no person shall for felony be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or navel forces, or in the militia when in actual service in the time of war or public danger. In all other cases, offenses shall be prosecuted criminally by indictment or information.

Article I Sec. 23. The right of trial by jury shall remain inviolate 1n criminal cases; but a jury in civil cases in all courts, or in criminal cases not of the grade of felony, may consist of less than twelve men, as may be prescribed by law. And the Legislative Assembly may provide by law that, in civil cases, any number, not less than two-thirds of a jury, may find a verdict, and that such verdict, when so found, shall be taken and held to have the same force and effect as if all of such jury concurred therein. Hereafter, a grand jury shall consist of twelve men, any nine of whom, concurring, may find an indictment; provided, the Legislative Assembly may change, regulate, or abolish the grand jury system

Section 8 provided that the initiation of proceedings against a defendant begin with either information or indictment by grand jury. Section 23 provided the number of jurors required. The provision also echoed the aforementioned Supreme Court opinion (that indictment by grand jury is not incorporated against the states) when it explicitly provided the Legislature the authority to abolish the system at any time. The origins of Section 8 are easy to identify, as the wording hearkens to grand jury protections in the Fifth Amendment of the U.S. Constitution, and is almost identical to Section 8, Article II of the Colorado Constitution.Comparison of the Montana Constitution with the Constitutions of Other States, Montana Constitutional Convention Occasional Papers Report No. 5, pp.8-8A

1889 Constitution

Article III Sec 8: Criminal offenses within the jurisdiction of any court inferior to the district court shall be prosecuted by complaint. All criminal actions in district court, except those on appeal, shall be prosecuted either by information, after examination and commitment by a magistrate or after leave granted by the court, or by indictment without such examination, commitment or leave. A grand jury shall consist of seven persons, of whom five must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge shall in his discretion consider it necessary, and shall so order.

1889 Constitutional Convention

the 1889 Constitutional Convention featured vigorous debate on whether to adopt Article III, Section 8 as read above. The first proposal provided: "That until otherwise provided by law, no person shall for felony be proceeded against criminally, otherwise than by indictment or information (and by information in cases where the accused has been held to answer by the committing magistrate), except ill cases arising in the land or navel forces, or in the militia when in actual service in the time of war or public danger. In all other cases, offenses shall be prosecuted criminally by indictment or information. A grand jury may be drawn and summoned at any time when, in the discretion of the district judges, it may be necessary."

The debate surrounded the efficacy of the grand jury system. This debate was seen in nearly every convention in the late 1800s.Montana Constitutional Convention Memorandum No. 6, The Constitutions of the Northwest States, p. 33 Many of the late 19th century state conventions featured voices that opined grand juries were no more than "inquisitions" and served no practical purpose.Id. (citing In the Montana convention. Weekly Oregonian, July 26, 1889, p.3) The move against the grand jury system was especially fervent in the conventions in the more rural states of the West. These conventions saw debate condemning the grand jury as cumbersome, unfair, and expensive to those in smaller countiesId. at 33 (citing Idaho, Proceedings and Debates, I. pp. 262-263; North Dakota, Debates, p. 365). Nevertheless, most of the Western state constitutional conventions at the time retained the right of a grand jury indictment, though with limitations.Id. The 1889 Montana Constitutional Convention was no different. The convention floor saw the use of colorful language to describe the grand jury system, led by Delegate Clark, who proposed that Montana abolish the grand jury system: "I would like the whole section to read: 'No person shall for felony be proceeded against otherwise than by information, except in cases arising in the land or naval forces, or in the militia when in actual service in the time of war or public danger.' My object in making this amendment is to abolish, absolutely and forever, the grand jury system in the State of Montana (Applause) . . . I have studied that system carefully. I have seen men go before the grand juries of the counties in which I have lived, actuated by the spirit of revenge to fasten something upon some man against whom they had a grudge . . . I consider that it [the grand jury] a relic of the dark ages, that has lingered and clung to the institutions of this country, and that it is time for the citizens of the Nineteenth Century, and the people of Montana who are now about to be clothed with statehood, to rise up in their majesty and relegate it to the dark ages from whence it came (Applause)." Proceedings and Debates, Constitutional Convention (July 18, 1889) p. 100

Delegate Dixon, responding to Clark's proposal, offered a substitute which left the option to impanel a grand jury to the discretion of a judge, which eventually became the provision adopted into the 1889 Constitution. The debate was far from over, however. Delegate Burleigh joined Clark in voicing his opposition to the grand jury: "I believe the time has come when a man should go clothed in the full panoply of manhood and make his complaint against the accused, and have him arrested and held, and not any sixteen men in a secret inquisition." Proceedings and Debates, Constitutional Convention (July 18, 1889) p. 101

The importance of the issue was not lost on the delegates. Delegate Middleton voiced the need for careful consideration: "Mr. Chairman, this, probably, is as important a question as will probably come before this Convention. I am in favor of having this matter referred, for the purpose of having this section properly drafted. From the reading of the amendment as proposed by the gentleman from Silver Bow, and the substitute that was offered, I am unable to understand just how it reads and what it means. But it occurs to me that, before that reference is made, the expression of the Committee of the Whole should be ascertained, so that the Judiciary Committee in preparing a substitute for Section 8, if they might see fit doing so, would know whether or not the Convention were in favor of abolishing the grand jury system entirely . . . So far as the matter of providing that the grand jury may be impaneled in the discretion of the district judge is concerned, the history of the grand jury system in the State of Wisconsin demonstrates that that power practically amounts to nothing and is not exercised. The constitution of the State of Wisconsin was amended in 1871, abolishing the grand jury system." Id. p. 102

After much debate, Delegate Marshall reminded the convention the necessity of retaining the right to a grand jury, as evidenced by the drafters of the U.S. Constitution: "It seems to me, not only for the protection of the citizen, but for the protection of the country, and the punishment of offenses, that the grand jury is a good thing. And i do not believe ... that it is a relic of the barbarous ages. It was required by our forefathers to be put in the Constitution of the United States, because they believed it was a protection of the citizen." Id. pp. 105-106

After further debate and some small revisions, the final provision was passed on July 18, 1889. Id. pp. 251-253

Interpretation of the 1889 Constitution

Following the ratification of the 1889 Constitution, the Montana Supreme Court held in multiple cases that one of the objects of Section 8 was to "eliminate the machinery and expense of a grand jury by substituting prosecution by information." Larry Elison and Fritz Snyder, The Montana State Constitution: A Reference Guide, Greenwood Press (2001), p. 66. (citing State v. Vinn, 1914; State v. Bowser 1898; State v. Cain, 1895; State v. Brett, 1895) In State v. Brett, the Montana Supreme Court described best what the provision required before a proceeding against a defendant can begin: "Either there must have been an examination and commitment, or there must have been leave of court provided. But both steps are not required . . . We think, too, that the rights of a defendant are guarded, no matter what procedure is followed.State v. Brett, 16 Mont. 360, 364, 40 P. 873 (1895)

This interpretation comports with the some of the delegates' negative sentiments about the grand jury, making obvious that Section 8 was designed to provide for limited use of the grand jury in the state.Montana Constitutional Convention Studies No. 10: Bill of Rights, p.159.

Other State Constitutions

In addition to producing research reports, the Constitutional Convention Commission published a collection of recent state constitutions so they would be available to all delegates for review at the 1972 Convention. Montana Constitutional Convention Studies No. 5: New State Constitutions, iii-iv (1968).

Alaska: No person shall be held to answer for a capital or otherwise infamous crime, unless upon a presentment or indictment of a grand Jury, except in cases arising in the armed forces in time of war or public danger. Indictment may be waived by the accused. In that case the prosecution shall be by' Information. The grand Jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment. The power of grand Juries to investigate and make recommendations concerning the public welfare or safety shall never be suspended (Section 8, Article I)Id.

Hawaii: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces when in actual service in time of war or public danger . . . (Part of Section 8, Article I).Id.

New Jersey: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces when in actual service in time of war or public dangerId.

Drafting

Proposal

Pre-Convention

In 1969 the Constitution Revision Commission, the predecessor of the Constitutional Convention Commission, provided a working paper that contained proposed changes to the Montana Constitution. In that document, the Judicial Reform Committee revised Article III, Section 8 of the 1889 Constitution to read: Criminal offenses, not amounting to felony shall be prosecuted by complaint. Felony cases shall be prosecuted by information, after examination and commitment as provided by law, or after leave granted by the court, or shall be prosecuted by indictment without such examination or commitment, or without such leave of the court. A grand jury shall consist of seven persons, of whom five must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it necessary, and shall so order. Constitutional Provisions Proposed by Constitution Revision Commission Subcommittees. Montana Constitutional Convention Occasional Papers Report No. 7, p.41

1972 Constitutional Convention

The first proposal for changes to Section 8 during the 1972 Constitutional Convention was made on January 20, 1972, and it was identical to the above Constitution Revision Commission proposal from their 1969 report. Delegate Proposal No. 7, Montana Constitutional Convention Proceedings, Vol. I, p.89. That initial proposal then went to the Bill of Rights Committee for consideration, who formulated the next iteration of the section on February 22, 1972. The Bill of Rights Committee moved the provision to Article II, Section 20, and proposed the language as follows: INITIATION OF PROCEEDINGS. Criminal offenses of which courts inferior to the district courts have jurisdiction shall be prosecuted by complaint. All criminal actions in district court, except those on appeal, shall be prosecuted by information, after examination or commitment, or without such leave of the court. A grand jury shall consist of seven persons, of whom five must concur to find an indictment. A grand jury shall only be drawn and summoned when the district judge shall, in his discretion, consider it necessary and shall so order. Bill of Rights Committee Proposal, Montana Constitutional Convention Proceedings, Vol. II, p.622 The Committee commented that they omitted the phrase "justice's courts and municipal and other courts" as they found it unnecessary and redundant. The Committee then went on to state that the rest of the section remained unchanged, reasoning that the "initiation of proceedings are part of the basic procedural rights framework established to maintain the accusatorial nature of the system of criminal justice."Id. at 639.

Debate

The debate surrounding Article II, Section 20 at the 1972 Constitutional Convention was minimal. The only change to the final proposed provision was put forth by Delegate Melvin, who asked that the grand jury be increased from seven members to eleven, and increase accordingly the majority necessary to bring an indictment from five to eight.Verbatim Transcript, Montana Constitutional Convention, p. 1765 (March 8, 1972).

In support of his amendment, Delegate Melvin cited his own experience with grand juries in Montana: "Now, in 17 years I've observed the two grand juries perform in my particular area - one with regard to a police scandal; the other involved two murders . . . Now, for the layman, I think that it's been so seldom that grand juries have been used in Montana that you should be aware that a grand jury is called only at the request of a District Judge. They assemble at the county seat, and their powers are broad . . . They can go into all areas of county and city government and functions of the county offices, as well as specific crimes. I'll not belabor the point other than to point out that it's because of the fact that I feel that from 11 people, that stronger leadership could be obtained to conduct this function that I'm asking for this amendment." Id.

Delegate Dahood echoed Melvin's support for the amendment, while also educating the other delegates on exactly what the grand jury is for: "I daresay there are very few lawyers on this Convention floor that have had any experience with it . . . Although we do have a grand jury procedure, it is almost never used. So it has come down to this in the State of Montana: a grand jury is used on rare occasions when some matter of great concern to the community has arisen and there is some question as to what action should be taken by the county prosecutor . . . I think having a larger number in a matter of that type of pressing importance certainly commends itself to us."Id. at 1766

The amendment passed unanimously, and the final draft was submitted to the Committee on Style and Drafting, who drafted the final provision as seen in the 1972 Constitution.Report of Committee on Style, Drafting, p. 959 (March 13, 1972).

Ratification

1972 Voter Information Pamphlet

After the delegates signed the proposed constitution on March 22, 1972, it was to be submitted to the voters on June 6, 1972. As required by Chapter 296, 1971 Laws of Montana, the Legislature paid for a guide to explain the changes to the voters.

At Article II, Section 20, the pamphlet read: "Identical to the 1889 constitution. Increases grand jury from seven to eleven persons." Proposed 1972 Constitution for the State of Montana Official Text With Explanation, available at https://www.umt.edu/law/library/files/1972voterspamphlet

Interpretation

Commentary