Price v. Goldman
Decision Date | 30 July 1974 |
Docket Number | No. X,No. 7783,X,7783 |
Citation | 90 Nev. 299,525 P.2d 598 |
Parties | Paul PRICE, Petitioner, v. The Honorable Pual GOLDMAN, District Judge, Department, of the Eighth Judicial District Court of the State of Nevada in and for the County of Clark, Respondent. |
Court | Nevada Supreme Court |
Paul Price, a journalist, has petitioned for a writ of prohibition. He asks this court to arrest proceedings which the Eighth Judicial District Court has undertaken, seeking to investigate unauthorized disclosure of information police allegedly obtained through a telephone wiretap that the District Court purportedly authorized pursuant to NRS 179.460. 1 If the Attorney General or the District Attorney of any county had properly applied to the respondent court for an order authorizing the interception of communications, as NRS 179.460 provides, we are inclined to think respondent would, after entry of such order, have continuing jurisdiction to investigate apparent abuses thereof. NRS 179.465 to 179.490; cf. Farr v. Superior Court, County of Los Angeles, 22 Cal.App.3d 60, 99 Cal.Rptr. 342 (1972). See also, In Re Farr, 36 Cal.App.3d 577, 111 Cal.Rptr. 649 (1974). However, the district attorney did not properly invoke the respondent court's jurisdiction in the initial instance and, indeed, later acknowledged to the court that he had no knowledge whatever of the court's order, until after one of his deputies had prompted its purported entry. 2
NRS 179.460 is virtually a verbatim copy of the federal statute defining the circumstances under which an enforcement agency may seek authorization for the interception of communications, except that our statute authorizes the to apply therefor, whereas the federal statute provides the 18 U.S.C. § 2516(1).
Interpreting the federal statute, the United States Supreme Court has recently held that where a person not specifically mentioned in the statute presumes to authorize the interception of wire or oral communications that such authorization is outside the statute's sanction and utterly void. United States v. Giordano, --- U.S. ---, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).
Such holding was in accord with a long line of federal court decisions, decided well prior to the time the district attorney's deputy in this case, without the district attorney's knowledge, prompted the respondent court to enter the order the court is now seeking to vindicate. 3
Without endeavoring to enumerate all the reasons the federal courts have given for confining the power to request wiretap authorizations to those persons specifically enumerated by law, we note our view that such reasons appear sound. 4 in NRS 179.460, we think, the context requires that the term 'district attorney' not be construed to include his deputies. See: NRS 169.045 and 169.075. Prohibition lies to arrest proceedings in aid of a void order. Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972); State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965); Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990, 210 P.2d 454 (1949). Whether independent contempt proceedings or other action might be instituted in the instant circumstances is not a question before us.
A peremptory writ of prohibition will issue forthwith.
1 '179.460 Cases in which interception of wire or oral communications may be authorized.
1. The attorney general or the district attorney of any county may apply to a supreme court justice or to a district judge in the county where the interception is to take place for an order authorizing the interception of wire or oral communications, . . .' (Emphasis added.)
2 After portions of the intercepted communications, which had been transcribed, appeared under petitioner's by-line in a Las Vegas newspaper, respondent initiated a closed investigatory inquiry during which Roy A. Woofter, the Clark County District Attorney testified:
3 United States v. King, 478 F.2d 494 (9th Cir. 1973); United States v. Mantello, 156 U.S.App.D.C. 2, 478 F.2d 671 (1973); United States v. Roberts, 477 F.2d 57 (7th Cir. 1973); United States v. Robinson, 468 F.2d 189 (5th Cir. 1972); United States v. Sklaroff, 360 F.Supp. 353 (D.C.Ga.1973); United States v. Robinson, 359 F.Supp. 52 (D.C.Fla.1973); United States v. Fox, 349 F.Supp. 1258 (D.C.Ill.1972); United States v. Vasquez, 348 F.Supp. 532 (D.C.Cal.1972); United States v. Boone, 348 F.Supp. 168 (D.C.Va.1972); United States v. Narducci, 341 F.Supp. 1107 (D.C.Pa.1972); United States v. Doolittle, 341 F.Supp. 163 (D.C.Ga.1972); United States v. Baldassari, 338 F.Supp. 904 (D.C.Pa.1972).
Interpreting substantially similar statutory language, at least three state courts, in pre-Giordano decisions, concluded wiretap orders issued on the authorization or application of an 'assistant' prosecuting attorney were 'fatally defective.' Eg: Application of Olander, 213 Kan. 282, 515 P.2d 1211, 1214 (1973); State...
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State v. Daniels
...that the legislature meant to include them. See, Application of Olander, 213 Kan. 282, 515 P.2d 1211 (1973); see also, Price v. Goldman, 90 Nev. 299, 525 P.2d 598 (1974). If the legislature were to include all assistant state attorneys in the class of officials who may authorize electronic ......