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IN THE DISTRICT COURT OF MONTGOMERY COUNTY, KANSAS
SITTING IN INDEPENDENCE
Order Regarding a Petition for a Grand Jury
The County Attorney on January
29, 2008, delivered to the Clerk of the Court a file folder containing a
petition for a grand jury and acknowledged doing so by letter to Mr. Doug
Base copied to the Clerk of the Court and Chief Judge dated January 30th.
On January 31, 2008, the Clerk
of the Court delivered that file, which consisted of ninety-seven (97)
pages, to the county election officer. With a letter dated February 6,
2008, the county election officer returned the petition to the Clerk of the
Court certifying that the petition contained one thousand one hundred and
forty-nine (1,149) original signatures, of which nine hundred and ninety-one
(991) were qualified county electors.
The petition now comes before
the district court judges of the county, who consider whether the petition
is in proper form and bears the requisite number of signatures.
To pass judgment on the
petition’s form we look to the grand jury statute, K.S.A. 22-3001 et.
seq., the case law annotated therein, and a prior Montgomery County
petition whose form passed judicial scrutiny in 1985 in case number 85C292C.
The grand jury statute
requires the petition to bear the signatures of a number of electors equal
to one hundred (100) plus two percent (2%) of the total number of votes cast
for governor in the county in the last preceding election, which the county
election officer puts at nine thousand two hundred and fifty-six (9,256),
making two hundred and eighty-six (286) the product of the statutory formula
for the petition under consideration.
The statute’s language
envisions that the petition will consist of more than one paper and sets
definite expectations for each paper: a statutory form at the top and
verification upon oath at the bottom. The petition we are called on to
consider meets the former requirement. The latter:
One of the signers of each paper shall verify
upon oath that each signature appearing on the paper is the genuine
signature of the person whose name it purports to be and that such signer
believes that the statements in the petition are true.
is more troublesome.
Embodied therein are two
requirements: 1) that someone verify upon oath the signatures on the paper…
and 2) that the verifier be a signer of the paper containing the signatures
being verified.
At this point it is helpful to
examine the 1985 petition, two (2) pages of which are attached hereto. That
petition consisted of ten (10) separate petitions totaling forty-six (46)
pages containing five hundred and seventy-eight (578) signatures. It stands
as local precedent that “paper” as used by the grand jury statute would be
interpreted to mean a multi-paged petition. We know this because, to pick
an example, Billy Jones, the person who presented that petition to the Clerk
of the Court, verified one hundred and fifty-two (152) signatures (including
his own) collected on a paper or petition that consisted of thirteen (13)
pages by subscribing, acknowledging and swearing before a notary public that
he had signed the petition, that the petition consisted of thirteen (13)
pages, that each signature appearing on the thirteen (13) pages was the
genuine signature of the person whose name it purported to be, and that each
signer believed the statements in the petition were true.
That verification appeared
only on the first of the thirteen (13) pages, but each subsequent page was
numbered and attached in such a way that avoided confusion for reviewing
officials, whether notaries or judges, about how many and which pages
constituted that “paper” and which signers Billy Jones was verifying.
The petition we are
considering has no indication that its ninety-six (96) signature pages,
purportedly verified by thirty-one (31) different signers, are anything
other than ninety-six (96) individual papers. The format for indicating
otherwise in the bottom right hand corner of each page is not utilized. Nor
are any of the pages signed by the same verifier unmistakably ordered like
the 1985 petition’s.
Even if we were to adopt the
broadest possible application and rule that the statute permits any signer
of any of the ninety-six (96) pages to verify any number of signatures on
any of the other pages, an even more damaging aspect of the petition that
cannot be ignored is that absent from the face of any of the papers is
written evidence by an official authorized to administer oaths that the
verifier’s verifications (purporting to be upon oath) were subscribed,
acknowledged or sworn to before such official. Indeed, sixty-six (66) of
the ninety-six (96) papers bear no seal of an officer authorized to
administer oaths. Of the thirty (30) that do bear a seal, only two (2) are
signed by such officer (an Oklahoma notary) and neither of those two (2)
jurats is in legally acceptable form.
A separate sheet entitled
“Individual Acknowledgment” dated September 18, 2007, submitted with the
ninety-six (96) signature pages purports to acknowledge the “attached
sheets.” Overlooking the fact that it is not attached to any sheets, such
falls short of the statute’s requirement as to form. If such
acknowledgement, contrary to it’s title, purports to verify all the
signatures on each page, according to its own terms it is doing so not on
the basis of personally witnessing each signature but on the “basis of
satisfactory evidence.” If the notary of the “Individual Acknowledgment” is
to serve as the verifier of every one of the one thousand one hundred and
forty-nine (1,149) signatures thereon, she is not available as an officer
authorized to administer an oath to herself, acknowledging that
verification.
If she is acknowledging the
verification upon oath of “one of the signers of each paper” that he or she
“has signed above…” she is acknowledging something that is clearly
inconsistent with information appearing on the face of all but a few of the
pages whose signatures total less than the number required by the statutory
formula.
The petition does not reflect
the date each signer signed it or the date each purported verifier affixed
his or her name. We presume all occurred prior to the “Individual
Acknowledgement” date. Future petitions would do well to reflect such dates
and that each is less stale than five (5) months.
For these reasons the petition
does not measure up to the statute’s requirements and we therefore find it
is not in proper form.
As disappointing and
disconcerting as this judgment undoubtedly is for the petitioners and as
unpleasant as pronouncing it is for the undersigned, the lesson of
State v. Finical, 254 Kan. 529 (1994) teaches that to do otherwise
knowingly invites dismissal of any indictments that might be returned by a
grand jury not properly summoned, or reversal of any resulting convictions
arising there from, results that would be an inexcusable waste of resources.
This order and the example of
the 1985 petition (which itself most probably was a second attempt and is a
public record maintained in the Clerk of the Court’s Coffeyville office)
should afford ample guidance for future K.S.A. 22-3001 et. seq.
petitions to withstand judicial scrutiny as to form.
This order entered and
delivered to the County Attorney this 19th day of February, 2008,
is the journal entry and appeal time runs from the date file stamped
hereon.
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R.D.
Canaday Roger L. Gossard F.
William Cullins
Chief
Judge District Judge
District Judge
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