History of the System

by David Thompson

(Ed. note) This is the second part of a continuing series on the Grand Jury System in Nevada. To find Part One, go to Archives and the December 15, 2003 issue, “The Grand Jury System.” This section deals with the history of the system in Nevada. See part 1

Investigative Activities and Reports

Under common law, grand juries had broad powers to investigate and report on the misconduct or malfeasance of public officers. By 1918, then Chief Justice Patrick A. McCarran could write for the court's decision in Parus v. District Court, 42 Nev. 229, 239, 174 Pac. 706, 4 A.L.R. 140 (1918): "The grand jury, whatever its ancient functions may have been, has under modern law become an institution endowed largely with inquisitorial powers. Not only does it have to do with criminal investigations, but by statutory provision it may inquire into the affairs, conduct and regulation of public offices, boards, and commissions. The public health and public welfare, as well as the moral atmosphere of a community, are matters of proper inquiry for our modern grand jury."

One interesting aspect of the grand jury system in Nevada is that, as a matter of judicial policy, the grand jury is not permitted to investigate the court system. Nevada district judges instructed the grand jurors: "Under the provisions of this statute [NRS 172.175], you must inquire into misconduct in office of public officials of every description within the county, save and except the courts. The reason for this rule is that the Grand Jury is empanelled by the court and must report its findings only to the court. In many respects, the Grand Jury is part of the Judiciary and, therefore, cannot investigate the government entity under which the Grand Jury functions. The law provides other means for the investigation and correction of irregularities in the conduct of Judges." (cited in footnote 3, In re Report of Washoe County Grand Jury, 95 Nev. 121, at 126, 590 P.2d 622 [1979].)

The investigative authority of the grand jury was well-established at common law. Specific legislative authority for grand jury reports was not thought to be needed until the legislative session of 1943. However, as the size of state and county government continued to increase after WWII, Nevada grand juries began to find their investigative activities under attack. One of the earliest controversies was over when a Nevada grand jury could begin to conduct an investigation.

On July 6, 1953, the Nevada attorney general's office issued a written opinion - AGO (Attorney General Opinions) 274 - taking a position which sharply curbed the powers of grand juries in the State. A group of citizens had prepared, signed and delivered a petition asking a Nevada grand jury to investigate the activities of the Colorado River commission. In the attorney general's opinion, the oath taken by the grand jury foreman implied that the inquisitorial powers of a grand jury are limited to the investigation of crimes and offenses. Furthermore, the attorney general opined, the grand jury possessed no power to investigate merely on the speculation that some crime may be discovered. In fact, the attorney general concluded, a grand jury cannot initiate an investigation until it possessed knowledge or information that a crime had been committed. Specifically, the attorney general required: (1) a showing of willful, corrupt or criminal acts; (2) a showing of "inequities not of a civil nature;" or (3) a showing that the alleged acts affect the morals, health or general welfare of the county.

The next challenge to the grand jury system was the question of what the grand jury could say about misconduct or malfeasance in office.

On June 20, 1956 an Ormsby County grand jury in Carson City filed its report after conducting an investigation into the operation of the office of the State surveyor general. According to the grand jury, certain State officers or members of their families had participated in the purchase of State land. The State of Nevada owned various lands, including a parcel used by the State Industrial School of Correction for Boys. Some of the State land was open for sale to private parties, including the State Industrial School of Correction for Boys property. As the Nevada Supreme Court later summarized: "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."

The 1956 Ormsby County grand jury report said the office of the surveyor general had sold that land to Nevada State Assemblyman William D. Byrne (Clark) and his wife, and Nevada State Assemblyman William B. Embry (Clark) had assisted the sale in hopes of getting paid. The Nevada Supreme Court characterized the grand jury report's conclusion as "one in which the grand jury in effect finds [Byrnes and Embry] guilty of conduct improper in a state officer and proceeds to administer censure." According to the Supreme Court decision, the report stated that Byrnes and Embry had "'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.'" The report also recommended that the State surveyor general be impeached. The grand jury report's final conclusion read: "That we have no present criminal recourse in any of the transactions herein reported."

Messrs. Byrne and Embry petitioned to have the conclusions section of the grand jury report expunged. This case went to the Nevada Supreme Court, which decided the matter on March 18, 1958. In its opinion deciding In re Ormsby County Grand Jury, 74 Nev. 80, 322 P.2d 1099 (1958), the court sided with Byrne and Embry, saying: "The principle is that a man should not be made subject to 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 ex parte proceedings in which the person punished has not been afforded the opportunity of formal open defense."

According to the decision, "The grand jury has no power, where the law is silent, to declare certain acts to be public offenses through the fixing of standards in accordance with its ethical or moral views."

The court concluded: "We seek an enlightened public in matters of public affairs, in the administration of public offices and the business of government. The grand jury's power of factual enlightenment remains unimpaired, as does its usefulness through its ability to draw upon the experience of its members in making recommendations in the public interest. It is not its function, however, to enlighten the public as to its moral or ethical standards of the day. If public enlightenment upon such matters be needed it must be sought from other sources. Nor is there grand jury authority to render final judgment of personal wrongdoing or to administer upon a person the sentence of condemnation or censure."

Accordingly, in AGO 218 and AGO 220, issued October 19 and 29, 1956, the State attorney general declared that a Nevada grand jury did not have the authority to issue or submit a public report denouncing or castigating public officials, individual members of boards or private citizens in the absence of evidence warranting their indictment for a criminal offense.

In 1960, during the administration of then Washoe County district attorney William J. Raggio, the Washoe grand jury investigated alleged corruption in the Reno police department, and influences that might have been pressuring the police department from the Reno city council. This resulted in two Nevada Supreme Court rulings on grand jury investigations.

The first of these cases, Carr v. District Court, 76 Nev. 403, 356 P.2d 16 (1960), involved George A. Carr, a Reno city councilman subpoenaed by the Washoe County grand jury. When sworn on June 15, 1960, Carr testified that he was engaged in the public relations and advertising business. When asked questions requiring him to state the names of his clients, Carr refused to answer. Carr said his refusal was not based on the fifth amendment ground that his answers might tend to incriminate him, but instead was based on the fact that certain of his work in public relations was of a confidential nature. According to Carr, he was apprehensive that should he disclose the requested information before the grand jury such information might well thereafter become public, to the detriment of Carr's business and income. The acting foreman of the grand jury petitioned the district court for an order holding Carr in contempt of the grand jury's powers. While the district court would not hold Carr in criminal contempt, the judge directed Carr to appear at the next session of the grand jury and answer its questions.

Carr then petitioned the Nevada Supreme Court for a writ of prohibition to block the district court from proceeding any further in the contempt matter. The court denied his petition on October 12, 1960, with a quote from the United States Supreme Court case of Blair v. United States, 250 U.S. 273:

"The witness is bound not only to attend, but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry. He is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his. . . . It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime."

In the meantime, on June 22, 1960 the Washoe County grand jury returned a written report containing their findings on an investigation of the Reno police department. The grand jury report criticized Reno chief of police William Gregory, found him incompetent to administer the department and recommended that he be replaced by a person who was a qualified administrator. The Reno City Council dismissed Gregory on June 28, 1960.

Gregory attempted to have the grand jury report expunged, failed, and appealed his case to the Nevada Supreme Court. The Nevada Supreme Court, in the case of In re Washoe County Grand Jury, 77 Nev. 290, 362 P.2d 447 (1961), rejected Gregory's claim, stating that the grand jury had undertaken a legitimate inquiry into matters affecting the morals, health, and general welfare of the public, and concluded: "there is nothing stated in the report that would constitute an accusation of anything except inefficiency and incompetency."

The next challenge involved whether a county grand jury could investigate a state agency. The Washoe County grand jury undertook an investigation of the Nevada state hospital, located in Reno. The basis for the investigation was certain information concerning the possible commission of public offenses at the hospital and security arrangements regarding patients at the hospital who had been convicted of criminal offenses, against whom criminal charges were pending, or who were dangerous to others. The grand jury subpoenaed records of the hospital, the state director of health and welfare, the present superintendent of the state hospital and a former superintendent of the state hospital.

In the case of Dickerson v. Grand Jury, 82 Nev. 113, 412 P.2d 441 (1966), the state attorney general petitioned the Nevada Supreme Court to block the investigation on the grounds that a state agency could only be investigated by a special grand jury, convened pursuant to Nevada Revised Statute (NRS) 6.135(1) at the request of the governor or a concurrent resolution of the legislature. The court upheld the Washoe County grand jury investigation, on the ground that the operations of the state hospital were within the county and the grand jury had statutory jurisdiction whether the investigation involved the commission of a public offense or concerned the health and general welfare of Washoe County.

During the administration of Washoe County district attorney Calvin R.X. Dunlap, in July of 1974, a Washoe County grand jury began to investigate a land transaction. Joseph Conforte bought several hundred acres of ranch property located in Sparks, and then sold part of the ranch to the Washoe County Convention Authority for use as a golf course. Development of the golf course, at county expense, greatly enhanced the value of the unsold remainder of the ranch, which Conforte still owned. The grand jury subpoenaed Conforte, who refused to testify on fifth amendment grounds.

The Washoe grand jury released its report on March 15, 1976. The report noted that Conforte had a 1962 felony extortion conviction and a 1963 conviction for federal income tax evasion. It related his apparent affiliation with a number of ex-felons, referred to Conforte's ownership of the Mustang Ranch brothel in Storey County and its deleterious health effects on the inhabitants of adjoining Washoe County, and referred to an alleged attempt by Conforte to establish close contacts with public officials in Libby, Montana. The report said that in Washoe County Conforte had established substantial contacts with a number of the public officials who were directly involved in the land transaction and related matters, and that Conforte had contributed financially to their political campaigns and/or had extended favors and gratuities to them at the Mustang Ranch brothel. The report noted that these courtesies had been extended to four of the five members of the Reno-Sparks Convention Authority. At the time these members were also members of the Reno and Sparks city councils, and the Washoe County Commission, the governmental entities responsible for a substantial majority of all decisions affecting the public welfare in Washoe County. The report stated that no presentments or indictments were legally returnable in the transaction, and emphasized that "nothing said in this report intended to accuse, imply or create an innuendo that any person has committed a criminal offense."

This grand jury report resulted in two more decisions of the Nevada Supreme Court. In the case of In re Report of Washoe County Grand Jury, 95 Nev. 121, 590 P.2d 622 (1979), Conforte petitioned the district court to expunge not only the sections of the report which referred to him, but the entire grand jury report. District judge William N. Forman expunged some of the report, but otherwise denied Conforte's request. Conforte then appealed to the Nevada Supreme Court.

In that case, the court decided that although there was no law which expressly allowed judges to review grand jury reports, grand juries had traditionally been within the control of courts. Furthermore, the court held, in Nevada "our constitutional and statutory scheme contemplate reasonable judicial control of our grand juries." Consequently, the court held that grand juries rendering a report must submit it to the district judge for pre-publication review. As for Conforte's demands for expungement, the court denied all of his request except for the portion of the report dealing with Conforte's activities in Libby, Montana, because the grand jury had jurisdiction over events which took place in Washoe County but not over events in Montana.

The same session of the grand jury presented a different decision for the Nevada Supreme Court to make in the case of Biglieri v. Washoe County Grand Jury Report, 95 Nev. 696, 601 P.2d 703 (1979). At the time of the 1976 Washoe County grand jury report, Clyde Biglieri was a member of the Reno city council. Although Biglieri was not indicted, the report concluded that Biglieri had performed his official duties with respect to the Conforte land transaction and a related city council vote on a proposed room tax increase, all while having a personal stake in the outcome of those matters.

According to the court, the grand jury based its findings on these allegations: Biglieri's real estate firm had handled the Conforte land transaction and as a result, Biglieri received a large commission from Conforte; Biglieri was aware that a substantial portion of the revenues raised pursuant to the room tax increase would be used by the city to purchase a parcel of land from Conforte; Biglieri knew that Conforte was in a position to reap major profits from this sale; Biglieri had received a substantial campaign contribution from Conforte; Biglieri was urged by Conforte to vote in favor of the proposed room tax increase; Biglieri had, in fact, cast the tie-breaking vote in favor of the tax increase; and most significantly, Biglieri knew he had a chance of receiving extensive Conforte business in connection with the future sale and development of the parcel of land retained by Conforte. However, the court concluded, "Of course, since no indictment was returned, the truth of these allegations cannot be ascertained." The Nevada Supreme Court held that the report had accused Biglieri of having a beneficial interest in an official transaction which he supervised, a criminal violation of NRS 197.110(2), without having indicted the man. The court granted some of Biglieri's requests for expungement, remarking that "When singling out an individual through accusations of possible criminal conduct, the grand jury acts as an inquisitor; in its inquisitorial role, the grand jury must either indict or be silent."

The two 1979 cases were the last in which the Nevada Supreme Court has ruled on grand jury investigations and reports. In 1985, the state legislature enacted three laws on the subject of grand jury reports, which codified the 1979 Nevada Supreme Court decisions: NRS 172.267, NRS 172.269, and NRS 172.271.

Here are the texts of those laws:

NRS 172.267 Report of grand jury: Scope; purpose; limitations.

1. A grand jury may issue a report concerning a matter into which it may lawfully inquire.

2. The report must be issued for the sole purpose of reporting on the matter. The report must not:

(a) Contain material the sole effect of which is to ridicule or abuse a person or otherwise subject him to public disgrace or embarrassment;

(b) Contain material which is personal in nature and does not relate to any lawful inquiry; or

(c) Accuse a named or unnamed person directly or by innuendo, imputation or otherwise of an act that, if true, constitutes an indictable offense unless the report is accompanied by a presentment or an indictment of the person for the offense mentioned in the report.

3. The judge impaneling a grand jury shall include the provisions of this section in his charge to the grand jury.

(Added to NRS by 1985, 700)

NRS 172.269 Report of grand jury: Inclusion of recommendations to public officers or agencies; criticism must be constructive; positive statement of no indictable activity required, if applicable. A grand jury may include in its report recommendations to a public officer or agency for actions which will reduce costs, increase efficiency or result in better service to the public. Any criticism made therein must be constructive and made in support of the recommendations. If such recommendations and criticism are included in a report and the report is not accompanied by a related indictment or presentment, the report must include a positive statement that no indictable criminal activity was found.

(Added to NRS by 1985, 701)

NRS 172.271 Report of grand jury: Preliminary review by court; notification of identified persons; procedure to expunge improper material; filing and distribution.

1. The grand jury shall submit a draft of the report that it wishes to make to the court which impaneled it.

2. The court shall review its contents and, if it contains any material which violates paragraph (a) of subsection 2 of NRS 172.267, require the grand jury to expunge that material from the draft.

3. The court shall send to any person identified in the draft in violation of paragraph (b) of subsection 2 of NRS 172.267 the pertinent part of the draft and notify him that he has been identified in the draft of the report of the grand jury in connection with possible criminal conduct. The person may, within 5 days after receiving the notice and the portion of the draft, submit a written request to the court for a hearing in chambers to consider a motion to expunge that portion of the draft from the final report.

4. The court shall rule on any such motion to expunge material within 20 days after the completion of the hearing on the motion.

5. If the court determines that the draft:

(a) Violates in its entirety a provision of NRS 172.267; or

(b) After the removal of a portion pursuant to NRS 172.267, is so incomplete that it is meaningless, it shall not file the report with the clerk of the district court but shall file instead a written statement describing, generally, its action and the basis for it.

6. The court shall file either the draft, the draft as corrected or the statement with the clerk of the district court within 60 days after receiving the draft from the grand jury. Upon filing, the draft becomes the final report of the grand jury.

7. Within 5 days after the report is filed, the clerk shall mail a copy of the pertinent portion of the report to each person or governmental entity mentioned in the report.

(Added to NRS by 1985, 701)

The topic of criminal accusations and indictments will be covered in the next of our articles on the grand jury in Nevada.