Ryan v. EIGHTH JUDICIAL DIST. CT., IN & FOR CTY. OF CLARK

503 P.2d 842, 88 Nev. 638, 1972 Nev. LEXIS 549

• Court: Nevada Supreme Court
• Decided: November 30, 1972
• Docket: 7033
• Status: Published

Opinions

OPINION

By the Court,

Thompson, J.:

This original proceeding for writs of prohibition and habeas corpus seeks to stop further action in the Eighth Judicial District Court upon an information filed independently by the Attorney General of Nevada with leave of that court, and to secure the petitioner’s discharge from restraint occasioned thereby. The information purportedly was filed pursuant to the provisions of NRS 173.035(2) which allows the district attorney, by leave of court, to file such an information following a preliminary examination in which the accused has been discharged.¹ It is the contention of the petitioner, James Ryan, that the mentioned statute does not invest the attorney general with authority to file such an information, that the district court could not grant him permission to do so, and that such action and any further proceeding thereon is and would be void for want of jurisdiction.

The information charges James Ryan, as a public officer, with receiving a bribe in violation of NRS 197.040. Originally, the attorney general commenced the prosecution of Ryan by filing a criminal complaint. Action thereon was held in abeyance while the attorney general presented his case to the grand jury of Clark County, which body declined to indict. Thereafter, a preliminary examination was held upon the criminal complaint and the charge was dismissed by the magistrate for want of probable cause. Following these adversities, the attorney general sought to initiate prosecution through the auspices of NRS 173.035(2). He did so independently and without requesting the district attorney of Clark County to act. Whether the attorney general may proceed in that manner is the only issue we need consider.

1. NRS 173.035(2) does not expressly grant such authority to the attorney general. Only the district attorney is given the right to file an information with leave of court following a preliminary examination in which the accused has been discharged. The statute is designed to provide a safety valve against an arbitrary or mistaken decision of the magistrate, Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970); Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972), in a prosecution initiated by the district attorney and erroneously dismissed. Indeed, our statutory scheme invests control of the information process in the district attorney to the exclusion of others. The legislature wisely has forbidden dual control. For example, NRS 173.045(1) provides that all informations shall be filed by the district attorney. He may elect not to file an information after a preliminary examination has occurred and the accused has been held to answer, but must give his reasons in writing for not doing so. NRS 173.055 (2). On the other hand, he may file an information with leave of court, notwithstanding a preliminary examination in which the accused has been discharged. NRS 173.035(2). These provisions declare the legislative purpose to grant the district attorney of the proper county control over the information process. The attorney general is not mentioned, and the conclusion is inevitable that he simply is not empowered to initiate a prosecution by information independent of the district attorney. Woodahl v. District Court, 495 P.2d 182 (Mont. 1972).

Of course, the attorney general may be invited to take over or assist in the prosecution of a criminal case. The judge of a proper court may, in extreme cases, require that all available evidence be delivered to the attorney general if the district attorney refuses to prosecute. NRS 173.065. The district attorney through the board of county commissioners may request the assistance of the attorney general to prosecute. NRS 228.-130. Moreover, the attorney general may appear in and take exclusive charge of a prosecution when, in his opinion, it is necessary, or when requested to do so by the governor. NRS 228.120(3). This provision, however, contemplates a pending prosecution, since a “prosecution” does not exist until a charge has been filed, and if filed, has not been dismissed.

In the matter at hand, the preconditions to attorney general intervention do not exist. He was not invited to act by the judge. He was not requested to act by the district attorney through the board of county commissioners. Neither was there a pending prosecution. It had been dismissed following preliminary examination, and the accused was discharged.

The power to “supervise” a district attorney which is granted to the attorney general by NRS 228.120(2), means supervision and cannot sensibly be read as a grant of power to usurp the function of the district attorney.

Finally, NRS 228.170 which allows the attorney general to commence or defend a “suit,” does not bear upon this case. By using the word “suit” in contrast to the word “prosecution” used in NRS 228.120(3), and the words “criminal cases” used in NRS 228.130, the legislature made clear its intention that the authority of NRS 228.170 embraces only civil matters. Indeed, that section has only been utilized in the civil area. State v. Moore, 46 Nev. 65, 207 P. 75 (1922); State v. Cal. M. Co., 13 Nev. 203 (1878); State v. C. P. R. R. Co., 10 Nev. 47 (1875).

2. The attorney general is a constitutional officer in the executive branch of our government. Art. 5; Sec. 19. He, along with the secretary of state, state treasurer, state controller and superintendent of public instruction “shall perform such other duties as may be prescribed by law.” Art. 5; Sec. 22. The phrase “such other duties” is used because art. 5, sec. 20 does, to some extent, specify the duties of the secretary of state. However, duties and powers are not specified for the other mentioned state officers. Such duties and powers were to be legislatively defined. The powers and duties of the attorney general, therefore, are to be found only in legislative enactment. They are not found anywhere in the Constitution of our State.

In declaring the rights of an accused, art. 1, sec. 8 of our Constitution provides, among other things, that one may not be tried for a capital or other infamous crime except “upon presentment or indictment of the grand jury, or upon information duly filed by a district attorney or attorney general of the State. . . .” The right to be tried by information was given by constitutional amendment which became effective in 1912, the purpose of which was to offer an alternative method for criminal prosecution.

The quoted provision is not self-executing. It is simply a limitation on legislative power within which legislation is to be enacted. Wren v. Dixon, 40 Nev. 170, 167 P. 324 (1916). The legislature has responded by defining the duties of the grand jury, NRS ch. 172, the presentment, indictment and information process, NRS chs. 172, 173, the qualifications and duties of the district attorney, NRS ch. 252, and attorney general, NRS ch. 228. Consequently, the power of the attorney general to utilize the information process mentioned in art. 1, sec. 8, of our Constitution is to be found in legislative enactment and not otherwise. We have already shown that his power does not encompass the procedure here sought to be utilized.

3. “The common law of England, so far as it is not repugnant to or in conflict with the Constitution and laws of the United States, or the Constitution and laws of this state, shall be the rule of decision in all courts of this state.” NRS 1.030. Assuming, without deciding, that the common law may have granted the attorney general the power he here seeks to exercise, cf. State v. Moore, 46 Nev. 65, 207 P. 75 (1922), such an exercise of power would be repugnant to the statutory law of this state, as we have already explained. Woodahl v. District Court, 495 P.2d 182 (Mont. 1972). The attorney general may not look to the common law to justify his action.

The requested writs are granted. James Ryan is discharged from restraint.

Zenoff, C. J., and Gunderson, JJ., and McDaniel, D. J., concur.

1 NRS 173.035. 1. An information may be filed against any person for any offense when the person:

(a)----

(b)----

2. If, however, upon the preliminary examination the accused has been discharged, or the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process shall forthwith issue thereon. The affidavit mentioned herein need not be filed in cases where the defendant has waived a preliminary examination, or upon such preliminary examination has been bound over to appear at the court having jurisdiction. .