Report of Ormsby County Grand Jury, In re

• Decision Date: 18 March 1958
• Docket Number: No. 4043,4043
• Citation: 74 Nev. 80,322 P.2d 1099
• Parties: In the Matter of the REPORT OF ORMSBY COUNTY GRAND JURY. Appeal of William B. BYRNE and William D. Embry.
• Court: Nevada Supreme Court

Page 1099

322 P.2d 1099

74 Nev. 80

In the Matter of the REPORT OF ORMSBY COUNTY GRAND JURY.

Appeal of William B. BYRNE and William D. Embry.

No. 4043.

Supreme Court of Nevada.

March 18, 1958.

Harry E. Claiborne, Las Vegas, for appellants, Byrne and embry.

Cameron M. Batjer, Dist. Atty. of Ormsby County, William J. Crowell, Carson City, for Ormsby County Grand Jury.

Harvey Dickerson, Atty. Gen., amicus curiae.

MERRILL, Justice.

Appellants are assemblymen from Clark County. By this proceeding they seek to expunge certain portions of a grand jury report. This appeal is taken from order of the court below denying the petition to expunge. The attorney general as amicus curiae has filed a brief in support of the position of appellants.

In 1956 the grand jury of Ormsby County (which includes Carson City, the state capital) undertook an investigation of the state office of surveyor general. Its report was filed June 20, 1956, with the district judge of the first judicial district which includes Ormsby County. The report was received and the grand jury discharged. This proceeding was then brought in the district court. The report is divided into four parts.

1. 'Background', in which the state land laws and statutory procedures for private acquisition of public lands are discussed and the reasons for recent activities in land purchases are set forth.

2. 'Findings', in which are set forth the facts relating to land purchases through the office of surveyor general in which certain state officers or members of their families participated. Among the transactions so factually recited are the participation of appellants, as members of the state legislature from Clark County, in legislation affecting sales of public lands; and the purchase of public land by appellant Byrne and his wife, in which purchase appellant Embry had assisted, anticipating compensation for his services. The land involved, at the time of purchase and for some time prior thereto, had been placed under use by the state in connection with its industrial school of correction for boys. Through oversight state title had not been perfected and the land had not been withdrawn from public sale.

3. 'Conclusions', in which the grand jury in effect finds appellants guilty of conduct improper in a state officer and proceeds to administer censure. This portion of the report includes statements to the effect that appellants have 'violated the moral obligation of their oath, office, or position'; that their action was 'most reprehensible and evidence of a complete disregard of their public trust and the public welfare', entailed 'unconscionable disregard of moral obligation' and was 'hereby condemned.'

4. 'Recommendations', by which further study of the problems of land sales is referred to the legislature; legal action is suggested to determine the respective rights of the state and the Byrnes to the industrial school land; and impeachment proceedings against the surveyor general are recommended to the legislature.

As to inquisitorial powers of the grand jury N.R.S. 172.300 provides in part, '1. The grand jury must inquire into: * * * (c) The willful and corrupt misconduct in office of public officers of every description within the county. 2. The grand jury may inquire into any and all matters affecting the morals, health and general welfare of the inhabitants of the county, * * *'.

No issue is raised upon this appeal as to the authority of the Ormsby County grand jury, under this statute, to investigate the conduct of a state officer located within the county. Appellants do not seek to expunge the entire report. Their attack is directed to the 'Conclusions.' The final conclusion reads, 'That we have no present criminal recourse in any of the transactions herein reported.' Appellants contend, since the grand jury was unable to indict, that it had no right to deal with the issue of guilt or to administer censure and that in making report it should have confined itself to its findings of fact and recommendations.

The overwhelming weight of authority is to this effect. The principle is that a man should not be made subject to a quasi-official accusation of misconduct which he cannot answer in an authoritative forum; that in making such accusation the grand jury is exceeding its reportorial function and is proceeding to impose the punishment of reprimand based upon secret exparte proceedings in which the person punished has not been afforded the opportunity of formal open defense. State ex rel. Brautigam v. Interim Report of Grand Jury, Fla., 93 So.2d 99; Ex parte Burns, 261 Ala. 217, 73 So.2d 912; In re Report of Grand Jury, (Shoemaker v. State), 123 Utah 458, 260 P.2d 521; State ex rel. Strong v. District Court, 216 Minn. 345, 12 N.W.2d 776; State v. Bramlett, 166 S.C. 323, 164 S.E. 873; In re Grand Jury Report, 204 Wis. 409, 235 N.W. 789; In re Report of Graud Jury in Baltimore City, 152 Md. 616, 137 A. 370; See: Jones v. District Court, 41 Nev. 523, 173 P. 885-888; Ex parte Faulkner, 221 Ark. 37, 251 S.W.2d 822; Dession & Cohen, Inquisitorial Functions of Grand Juries, 41 Yale Law Journal 687, 705.

In support of the 'conclusions' of the grand jury report the strongest case presented is In re Presentment by the Camden County Grand Jury, 10 N.J. 23, 89 A.2d 416. In that case the grand jury had investigated jail conditions and irregularities in the practices of jail officials. A lengthy report was filed which contained charges that the sheriff 'had failed miserably in his public trust' and merited 'the strongest kind of moral indictment. Moral only because the laws of the state fail to define clearly his chargeable responsibilities and fix legal penalities * * *.' Denial of a motion to expunge was upheld by the New Jersey Supreme Court. It first held that the 'report' of the grand jury was in truth a 'presentment.' It noted that grand jury reports are unknown to New Jersey law. In large part the opinion by Chief Justice Vanderbilt constitutes a scholarly examination into the nature of the grand jury presentment as known to New Jersey law. It concludes that the New Jersey presentment of today is a presentment as to public affairs: a type of presentment which 'differs from the obsolete criminal presentment in that it does not lead to a trial, but merely to a notice to the offender.' 89 A.2d 423.

That case is distinguishable for the reason that the laws of this state differ from those of New Jersey. Here the grand jury reports upon matters of public affairs. 'Presentment' is expressly perpetuated with reference to public offenses and otherwise receives no statutory recognition. N.R.S. 172.220 provides, 'The grand jury must inquire into all public offenses committed and triable within the jurisdiction of the court, and present them to the court, either by presentment or indictment.' N.R.S. 172.230 provides, 'A presentment is an informal statement in writing, by the grand jury, representing to the court that...