State ex rel. Woodahl v. District Court of the First Judicial District ex rel. County of Lewis & Clark

553 P.2d 971, 170 Mont. 329, 1976 Mont. LEXIS 609

• Court: Montana Supreme Court
• Decided: June 18, 1976
• Docket: No. 13389
• Status: Published

Opinions

ORDER

This is an original proceeding by the attorney general and grand jury of Lewis and Clark County seeking a writ of supervisory control (1) to remove the presiding judge in the grand jury •proceedings, (2) to set aside an order to show cause and temporary stay of execution of subpoenas directed to three witnesses summoned to appear before the grand jury, (3) to set aside a fourth witness’ application to cancel or suspend grand jury subpoenas.

These matters were set for adversary hearing, leave to intervene was granted, briefs were filed, and argument presented and all matters were taken under advisement by the Court following hearing on June 7, 1976.

The application of the attorney general and grand jury for removal of the Honorable Gordon A. Bennett as presiding judge in the grand jury proceedings is denied on the following grounds: (1) No legal basis is shown for his removal; (2) No evidentiary hearing has been held to resolve disputed issues of fact; and (3) The existence of an adequate remedy at law precludes the issuance of an extraordinary writ.

The applications to set aside the order to show cause, the temporary stay of execution of subpoenas, and the hearings relating to- subpoenas issued to witnesses John Boyer, William F. Pellegrini, John P. Dresher and William T. Kelly are granted. The orders of the Honorable Gordon E. Bennett, District Judge, in relation thereto, dated May 19, 1976 and May 26, 1976 (exr hibits 3 and 4 attached to the application for writ of supervisory control herein) are vacated and set aside. The ground for annulling the same is the absence of a sworn statement of applicant, an affidavit, or supporting documents legally sufficient to support issuance of said orders.

This matter is remanded to the grand jury of Lewis and Clark County for continuation of such further proceedings before that body as it may deem appropriate.