In Re the Report of the Washoe County Grand Jury

Batjer, J.,

concurring in part and dissenting in part:

1 respectfully dissent from that part of the majority opinion which states: “It is, of course, our prerogative to interpret NRS 172.175 as allowing the district court the power to refuse to file reports which exceed the grand jury’s authority.”, and from the holding of the majority that “the district court has the limited power to review reports of grand juries within its jurisdiction prior to publication”.

The majority concedes there is no statutory authority requiring or authorizing a district court to review reports of grand juries prior to publication and relies heavily upon People v. Superior Court of Santa Barbara County, 531 P.2d 761 (Cal. 1975) in reaching its holding. A close examination of the California cases decided prior to Santa Barbara County reveal none holding or suggesting that a right exists in a judge to subject the report of a grand jury to prior judicial censorship and approval.

As Justice Stanley Mosk wrote in his dissent in Santa Barbara County:

“Indeed, no statute gives to a court the duty or right to investigate or report on county or other governmental affairs. Nevertheless the ability to suppress the whole, or to excise parts, of a report, in effect places with the court responsibility over the investigating and reporting of matters entirely extraneous to the judicial function. By authorizing this procedure, the majority thrust the court into the maelstrom of local government controversy. For if the court may suppress reports with which it finds fault, a failure to suppress will be deemed approval.

The proper course is the traditional course. The grand jury may file its report — with the court only because the law directs that to be the resting place — and the grand jury alone assumes the responsibility for content. If there is to be any prior restraint on the grand jury, its work or its work product, the Legislature must authorize it.”

Neither by direct order nor by the suppression of a report should a court prevent a grand jury from expressing views on subjects the court might believe improper.

As a result of the majority opinion, this Court is in effect expanding the jurisdiction of the district courts and diminishing the jurisdiction of the grand jury.

I would deny all district courts the power to review prior to publication the reports of grand juries within their jurisdiction.

I concur with the remainder of the majority opinion.