Legality of Chanos’ probe is questioned

Thursday, Dec. 1, 2005 | 7:17 a.m.

Attorney General George Chanos' belief that he has authority to investigate Las Vegas city officials' handling of the Royal Links Golf Course land deal falls into a murky area of state law that is open to interpretation.

Numerous legal experts say the attorney general's jurisdiction to investigate and prosecute a case -- instead of district attorneys and city attorneys -- depends on the state law that is cited.

In declaring his jurisdiction, Chanos cited two state laws. But both of those laws were interpreted by the Nevada Supreme Court in 1972 as limiting an attorney general's power to prosecute a case.

In a case involving former Clark County Commissioner James "Sailor" Ryan, the high court said the attorney general's office did not have authority to initiate a criminal prosecution of Ryan for bribery after a county grand jury refused to indict him and the attorney general did not get the district attorney's permission to proceed. (Ryan was later convicted by federal prosecutors.)

"The Ryan case is completely inapplicable, and we're not concerned in the least about it," Chanos said.

But others still have questions.

Las Vegas criminal defense attorney Thomas Pitaro said, "It seems to me that the Ryan case still has validity as a restriction on the attorney general to initiate criminal prosecutions."

The question is whether the attorney general can come in and take over a local investigation without the invitation of local officials.

Chanos announced earlier this month that his office would investigate whether there was any wrongdoing at City Hall connected with developer Bill Walters' acquisition of the Royal Links land and his bid to lift a deed restriction on the golf course to build a 1,200-home residential development.

Chanos has since appointed a special prosecutor to handle the probe.

A Metro Police investigation found that from 1997 through 1999 former Las Vegas Public Works Director Richard Goecke may have committed felonies that aided Walters in the acquisition and development of the land next to the city's wastewater treatment plant.

But the Clark County district attorney's office concluded that the statute of limitations on those alleged improprieties had expired, according to police. Goecke has denied wrongdoing.

Pitaro said that although some of the statutes cited in the 1972 case have been changed, other state laws limit the attorney general's authority. An example, he said, is NRS 173.065, a law adopted in 1967 that gives a judge jurisdiction to determine in "extreme cases" whether an attorney general should prosecute a criminal case if the district attorney refuses to do so.

"There are many statutes that limit an attorney general's ability to prosecute that are still in effect," Pitaro said.

Chanos, though, said the law is clear enough. Nevada Revised Statute 228.120(3) says that the attorney general may "appear in, take exclusive charge of and conduct any prosecution in any court of this state for a violation of any law of this state, when in his opinion it is necessary, or when requested to do so by the governor."

Case law, however, still notes the Ryan case as one of the key rulings in connection with interpretation of both laws cited by Chanos.

The case grew from an attempt by then-Attorney General Robert List in 1972 to prosecute Ryan for accepting a $5,000 bribe from a land developer. A county justice of the peace tossed out the case for lack of sufficient evidence and the attorney general appealed to the Supreme Court.

In a 4-1 ruling, the high court sided with Ryan and against the attorney general. The majority ruled that one of the laws Chanos cites -- NRS 228.170 -- applies only to civil matters, not to criminal activity.

"Indeed, that section has only been utilized in the civil area," then-Justice Gordon Thompson wrote for the majority.

In rejecting the application of NRS 228.120 (another part of the law Chanos is relying on) in the Ryan case, Thompson wrote: "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."

But Chanos said the Ryan case "has been completely superseded by subsequent legislation." Chanos said NRS 228.120 was amended by the Nevada Legislature in 1979, seven years after the Ryan ruling.

According to the legislative history of that amendment, the key change was a provision that expanded the attorney general's authority by allowing him to file criminal complaints in both District Court and Municipal Court. Until then -- and as spelled out in the Ryan case -- the attorney general was allowed only to file criminal complaints with grand juries.

At the time, the attorney general's office supplied the legislators with a list of subject matters that the office was allowed or required to prosecute. Among them were gaming, unfair trade practices, taxation, election campaign practices, securities, prison inmates, food stamps, open meeting laws and lobbyist disclosure.

Notably absent was any mention of corruption by public officials. Whether this was simply an oversight cannot be determined by a review of the legislative history.

The legislative intent was to correct a shortcoming in the attorney general's powers that was exposed in the Ryan case.

Chanos, though, said, "What the Legislature did after the Ryan decision was to give the attorney general express authority to pursue matters such as this."

Richard Morgan, dean of UNLV's Boyd School of Law, said he doesn't think the Ryan ruling prevents Chanos from launching a criminal investigation. Morgan said he believes the Royal Links probe is covered by a portion of NRS 228.120 that permits the attorney general to take a case to a grand jury.

"He has to do an investigation in order to gather evidence," Morgan said. "And if he does an investigation, he will probably go to a grand jury because this is a politically charged case."

Clark County District Attorney David Roger, who did not request Chanos' intervention in the Royal Links land deal, declined comment on the Chanos probe.

"Not one that I want to share on the record," Roger said.

Former Gov. Bob Miller, a former Clark County district attorney, also declined comment on the Chanos investigation.

But Miller said that given the fact the district attorney is a county official, it might be easier for the attorney general to exert authority over a case involving county officials than city officials. That's because there might not be as much conflict between a district attorney and a city official, he said.

"Under normal circumstances one would think that the attorney general would consult with the district attorney," before launching an investigation, Miller said.

Former Attorney General Frankie Sue Del Papa said she didn't want to "second-guess the attorney general."

"There is broad authority based on certain situations," she said. "There are a lot of avenues to get to jurisdiction. There is broad authority under any attorney general to look at a lot of things."

Steve Kanigher can be reached at 259-4075 or at steve@lasvegassun.com.