MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES

 

      Sixty-seventh Session

      June 3, 1993

 

 

 

The Assembly Committee on Elections and Procedures was called to order by Chairman Myrna T. Williams at 3:55 p.m., Thursday, June 3, 1993, in Room 119 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mrs. Myrna T. Williams, Chairman

      Mr. Robert E. Price, Vice Chairman

      Mr. Val Z. Garner

      Mr. David E. Humke

      Mrs. Joan A. Lambert

      Mr. William A. Petrak

      Mr. Robert M. Sader

      Mr. Scott Scherer

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Joseph E. Dini, Jr.

      Mrs. Jan Evans

      Mr. Gene T. Porter

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Mr. Robert Erickson/Research Director, Legislative Counsel Bureau

      Mr. John R. Crossley/Director, Legislative Counsel Bureau

 

OTHERS PRESENT:

 

      Ms. Michelle Bero/Nevada Association of Counties

      Ms. Nancy Howard/Nevada League of Cities

      Ms. Thelma Clark/Nevada Seniors Coalition/Citizens Recall Effort

      Chief Deputy Dale Erquiaga, office of Secretary of State

      Ms. Mary Miller/office of Clark County District Attorney, Las Vegas

      Ms. Anna Dawson, Las Vegas

      Ms. Marlene Henderson/Washoe County Registrar of Voters

      Ms. Ande Engleman/Nevada Press Association

      Ms. Janyce Rossall/Committee to Save Plumas Street

      Mr. Rich Tidwell/Committee to Save Plumas Street

 

 

AB 552:     Makes various changes relating to recall of public officers.

 

Ms. Michelle Bero, representing Nevada Association of Counties, and Ms. Nancy Howard, representing Nevada League of Cities, stated their organizations cosponsored AB 552.  Ms. Bero explained last session their organizations worked with the recall petition process and when the law was changed last session, language was inadvertently added to the law.  Page 2, Section 2 was the actual intent of the legislation.  When the law was changed in 1991, it required all petitions having the correct number of signatures or less than that amount be turned into the proper filing office.  When this was done, a provision should have been added that petitions which did not have sufficient number of signatures did not have to go to court.  AB 552 added the provision that only those petitions containing a sufficient number of signatures be sent to district court, and that was the intent of the legislation, she declared.

 

Ms. Howard affirmed Nevada League of Cities was a cosponsor of AB 552 and was totally in support of AB 552 legislation as it was currently drafted.

 

Ms. Thelma Clark, representing Nevada Seniors Coalition and Citizens Recall Effort, proponents of AB 552, testified AB 552 had not been scheduled for an earlier hearing because she had asked for postponement.  She addressed the people in Las Vegas that Mrs. Williams had scheduled AB 552 for a hearing on May 18, and she (Ms. Clark) had asked to have the hearing on a day on which the hearing could be teleconferenced to Las Vegas.  The meeting had to be postponed until the room for teleconferencing could be scheduled on a Tuesday or Thursday when the committee met.

 

Mrs. Williams stated it was unfortunate not many people were in attendance in Las Vegas for the hearing.

 

Ms. Clark testified the constitution allowed a public officer to be recalled, but the statute was vague and cumbersome.  She felt all agreed recalling a public officer should not be easy, but it should be made possible. 

 

Mr. Dale Erquiaga, Chief Deputy, office of Secretary of State, provided the committee with proposed amendments to AB 552 (Exhibit C).  He explained the bill had been written some time ago.  In the previous 30 years in Nevada, four recall efforts were initiated.  In the last year, the Secretary of State's office had dealt with 11 recall efforts, and in doing so found the statute did not work, he told committee.  The statute did not implement well with the constitution, and, if read separately from the constitution, the statute did not make any sense.  He continued different rulings came from district court judges on the same issue.  Part of the problem would need to be addressed by amending the constitution.  It had been suggested in NRS 306 a definition be considered of the term last preceding general election used in the constitution, and, for recall purposes, find the meaning.  He asserted two different sections of the constitution and at least two different sections of Nevada Revised Statutes had to be read, none of which were in Chapter 306.  He suggested a definition declaring "as used in Article 2, Section 9 of the Constitution, these words mean this." 

 

Ms. Clark then provided the committee with Exhibit D which was a copy of NRS Chapter 306 and Section 9. 

 

Mr. Erquiaga reflected Ms. Clark and constituents in Las Vegas had asked repeatedly that recall be addressed.  Consequently, Secretary of State Lau submitted proposed amendments to AB 552.  See Exhibit C.  Mr. Erquiaga then recapped each of the proposed amendments.

 

Regarding publishing petitions which would give people the opportunity to find out if their name was on a petition they had not signed, Mrs. Lambert asked how the situation would be handled if an individual did not have a court hearing.

 

Pointing out that submitting for verification and filing were two separate steps, Mr. Erquiaga stated after the document was filed, when the issuance of the call was published, the clerk could publish the names.

 

Mrs. Lambert continued her questioning and asked what would happen if the call for election was issued, names were published, enough people came forward and withdrew names so that there were not sufficient names for the election.

 

In response to Mrs. Lambert's question, Mr. Erquiaga explained there would have to be a mechanism to stop the election if enough people came forward to withdraw their names.  If the right of publication was extended, an escape valve would have to be in place for the Secretary of State or someone else at that point to stop the election.  Once the call was issued, constitutionally in 20 days an election must be held.  Mr. Erquiaga encouraged committee not to protract the process leaving a sword over the official's head.  He told Mrs. Lambert he did not have a very good answer.

 

Ms. Clark related on their petitions an excess of 15,000 signatures appeared, and when they went to court, there were four.  People had come and asked that their names be taken off.  They all admitted they signed the petitions, but they wanted their names taken off.  University regents were being recalled, and the signers on the petitions were university people, she reflected.

 

Mr. Scherer referenced Exhibit C, page 1, the first two lines of the second paragraph from the bottom, and asked Mr. Erquiaga if it was his intention that only the officer could challenge the petition and take it to court under the scheme he was proposing.  That was the intention, Mr. Erquiaga replied, as he could not see a reason for the petition to be challenged by anyone else.

A typical case, Mr. Erquiaga advised, was the officer who came to court and said the pages were not consecutively numbered and did not have recall printed in ten point gold type, and the individuals were not registered voters.

 

Mr. Scherer addressed the possibility of a case where someone would not have financial resources to go to court, and someone wanted to challenge the petition. 

 

Responding to Mr. Scherer, Mr. Erquiaga suggested the language, "If the legal sufficiency of the petition is challenged, all affidavits and documents..."  and deletion of the reference to the officer, "by the officer whose recall is being sought." 

 

Mr. Scherer referenced Page 1, lines 15 and 16, and asked why the filing of the petition should be required if a recall effort was initiated, it was known that not enough signatures were obtained and the recall effort had failed.  Why should any further steps be taken which would cause additional paperwork, he questioned.  Why would an individual not let the 60 days or 120 days run and then the petition would no longer be valid because he would have to issue a new notice of intent, he reflected.

 

Ms. Michelle Bero, Nevada Association of Counties, answered Mr. Scherer's question by stating last session in some of the rural areas where recall petitions had been filed, individuals filed the petitions because they were upset with an action by a local government official.  The time period ran out, and they then went before the media, back to the local government officials and made excuses for not having enough signatures.  The local government officials wanted the ability to say, if somebody was serious about filing for recall petition, once the petition was initiated, the official had the right to know how many signatures had been gathered.  If the public was genuinely upset with the elected official, the official would be aware of that by the recall petition number of signatures.

 

Referencing Exhibit C, Page 1, last paragraph, Mr. Humke voiced an opinion that removal of a name appeared to be a major change, and the existing law seemed fair; if a person wanted to remove his name, he should be able to remove it.  The proposed amendment declared the person would have to appear in person and make a case to the judge, and the judge would decide.

 

Responding to Mr. Humke's concern, Mr. Erquiaga pointed out currently two means existed for removing a name from petition.  One method in Chapter 306, not listed in the bill, where an individual would send a letter to the clerk or registrar stating he/she wanted to have his/her name removed, remained in tact under the amendment, Mr. Erquiaga declared.

 

The second method under current law was for the individual to appear at the automatic court hearing and tell the judge he/she did not want his/her name on the petition.  If the court agreed it would be a good cause, the judge would strike the name.  The problem was the court proceeding was taken away so that second option for people to remove their name was taken away.  If the petition was challenged and a court proceeding was held, that opportunity to remove their name was still available.

 

Again referring to Exhibit C, Page 2, last sentence, Mr. Humke questioned the types of civil actions which had been brought and under what theory.

 

Mr. Erquiaga answered the civil actions would be court costs and attorney fees of the officer who was being recalled and who had prevailed at a hearing.  However, responding to another question by Mr. Humke, Mr. Erquiaga advised this was not contained in statutes.  Discussion ensued between Mr. Humke and Mr. Erquiaga regarding civil actions against petitioners who had lost in court. 

 

Mr. Humke noted amendment language was a broad grant of immunity and it appeared the intent was to give absolute immunity.  Mr. Erquiaga, speaking for the Secretary of State, said it was an absolute right.  He declared Mr. Humke's assumption was correct.  An individual should not be penalized for exercising his/her right to circulate a petition unless they violated a criminal statute in the process, and, if that petition process forced the individual to go to court, the individual should be immune from having to pay somebody else's damages.

 

Ms. Clark referenced Exhibit D, Page 8318 (NRS 306) and stated number 6 was the answer to Mr. Humke's question.

 

Mr. Price questioned how the individual would know who to contact to have his/her name removed before the petition was filed.  Ms. Clark pointed out the people who filed the intent would have to know.  The signer could go to the election department.  The county clerk or whoever registered voters in the county would tell the person.

 

Mrs. Williams at this time announced her intention to hear from witnesses from Las Vegas. 

 

Ms. Mary Miller, office of Clark County District Attorney, Las Vegas, referenced Mr. Humke's and Mr. Erquiaga's discussion regarding civil actions filed against petitioners who had lost in court.  She noted costs requested from specific recall petitions in Las Vegas were addressed under the general cost and attorney fee statute in the NRS.  She stated she had concerns if it was the wish of the committee to grant immunity to people who circulated recall.  She felt the suggested language would suffice because under the method University regents chose to seek their costs, they did not have to institute a separate lawsuit. 

 

If immunity was to be granted to petitioners, Ms. Miller thought in the statute or amendments, which would suggest revisions to the court proceedings, a specific direction should be given that costs and fees would not be assessed during the legal proceedings. 

 

Another concern of the election department, she said, was under the current recall statute, provisions allowed people to withdraw their names in written form.  Once the petition was filed in court, it might be easier for people who see their names published in the paper to be allowed to provide the written notice to the registrar up to the date a judge ruled on the petition.

 

Ms. Anna Dawson, Las Vegas, spoke regarding length of petitions.  If 15,000 signatures were required, 60 days would not be enough time if holidays fell within that time.  She asked if a provision could account for that and suggested 120 days.

 

Ms. Dawson continued and asked the laws be written in a way that a layman could understand.  She told committee every time the petitions went to the election department the laws had been changed, and the system was different.  Once they were told to number the pages and the next time they were told not to number the pages.  The laws should be in language everyone could understand.

 

Mrs. Williams told Ms. Dawson she was sure the members of the committee who were not attorneys would agree.

 

Mrs. Williams then asked if anyone else from Las Vegas wished to testify.  No one came forward.

 

Ms. Marlene Henderson, Washoe County Registrar of Voters, provided the committee with prepared testimony which related to her feelings concerning AB 552.  See (Exhibit E.)  Ms. Henderson agreed with Secretary of State's deletion of the district court portion.  In 1991 she stated she had seven initiatives and three recalls.  She discussed the time necessary for the registrar to perform duties of a recall election, and stated not enough time was allowed the registrar according to NRS 293 and Chapter 306. 

Ms. Henderson advised committee she did not agree with publishing the names of the people in the newspaper, and she preferred only the total number of people who signed the petition be published. 

 

Mr. Scherer asked Ms. Henderson for her thoughts on publishing a public notice of a signed recall petition stating that anyone who wished to inspect the petitions and verify signatures could do so during normal business hours at the address of her office until a particular date.  He asked if she thought the notice would be satisfactory and if she thought the notice would provide sufficient protection to the public.

 

Ms. Henderson agreed with the notice and felt it would provide sufficient protection.  Discussion ensued between Mr. Scherer and Ms. Henderson regarding the process and Ms. Henderson's software program which would assist.  The program included signatures of petitioners, she informed the committee.  She pointed out, however, the smaller counties would have to verify signatures against the Affidavits of Registration.

 

Mr. Schaffer then asked Ms. Henderson if she thought there was a need to file the petition even if someone thought not enough signatures were on the petition or if individuals wanted to abandon their recall effort. 

 

Ms. Henderson thought a memo from the people who had the petition stating they wished to withdraw the petition would suffice. 

 

Mrs. Williams asked if anyone in Las Vegas not on the list wished to testify.  No one came forward.

 

Ms. Ande Engleman, representing Nevada Press Association, stated they were gratified to see legislation come forward to clarify the issue, and she discussed recall petitions in the north and south during last year.  Because of statewide petitions, she and Mr. Erquiaga had worked together to see if everyone understood the law in the same way, she added.

 

Of paramount interest to the public was their understanding of exactly the number of signatures to be obtained for the purpose of a recall, Ms. Engleman stated.  She discussed the necessity of defining the exact process of recall.

 

Ms. Engleman also discussed publication of petition signatures in the newspaper and gave reasons in favor of newspaper publication which were time and expense to people if people had to go to the clerk's office to seek petition information.

 

Ms. Janyce Rossall, Committee to Save Plumas Street, addressed the committee reading from prepared text.  See (Exhibit F.)

 

Mr. Scherer asked Ms. Rossall in the recall petitions she had been involved with, how many people had asked to have their names removed, and Ms. Rossal told him very few.  She then discussed city general elections and the number of signatures required on recall petitions which she thought should be 25 percent of the people electing the individual.  Continuing the line of questioning, Mr. Scherer asked if Ms. Rossall thought the number should be 25 percent of the people who voted in the last election in which particular elected official was elected, and Ms. Rossall replied, "Yes."

 

Mr. Scherer confirmed her answer by describing if the city council served four year terms and the election had been held in 1989, the recall effort was done in 1992, and the individual was up for reelection in 1993, then the percentage of signatures required would be 25 percent of the people voting in the 1989 election.  Ms. Rossall suggested Committee to Save Plumas Street would make it 25 percent of people actually voting in the election where the individual was elected.  Mr. Scherer then said, "If it was 1991 when the person was elected, you would use 1991."

 

Mr. Rich Tidwell, Committee to Save Plumas Street, testified he was involved in the recall election to save Plumas Street.  He told committee he was the writer of the notice of intent and the first notice of intent was rejected by a city attorney with the threat that individuals would take the Plumas Street committee to court.  Mr. Tidwell stated the Committee To Save Plumas Street felt saving the trees was more important than haggling over the word verified or acknowledged so went as laymen and filed another notice of intent.  Over 2,000 signatures were lost in the second filing, he declared.

 

Mr. Tidwell conveyed the Committee To Save Plumas Street, after six weeks of negotiating with city council members, felt the petition process was their last recourse.  He reviewed the law, and then wrote the notice of intent which took approximately one week. 

 

He said no attorney would represent the Committee To Save Plumas Street because the law was unclear.  Referring to his experience, Mr. Tidwell felt Section 1 of NRS 306.015, number 2 (a) Must be signed by three registered ....and (b) Must be verified before a person authorized by law ..., were other quagmires in the process which would just throw the process into court.

 

Mr. Tidwell felt a fair standard should be applied.  He did not think recall should be made easy to do.  It was the last resort,  an address of grievances.  The law, therefore, should be understandable and the form should be understandable, he contended.  As laymen, Mr. Tidwell's committee felt the interpretation should be clearly understandable so that citizens could have a redress of grievances.

 

Mr. Tidwell testified he met with all council persons individually.  His Committee was given misstatements and misinformation, and as a last resort he was appearing before the Elections and Procedures Committee to ask for clarification of the notice of intent.

 

He suggested using the word acknowledge rather than verify in NRS 306.015, Section 1, number 2 (b).

 

Mrs. Lambert asked Mr. Tidwell if he thought one form would fit every situation. 

 

Mr. Tidwell felt the notice of intent could be standardized like the verification statement so that when it was filed, it would be clear.  He also thought the number of signatures required could be standardized and clarified.  The laws were in various sections which made it very hard.  He further stated his committee went to the extent of getting a form which had been successfully filed on a recall.  That form was not successful either, he said.

 

Mrs. Lambert confirmed that Mr. Tidwell would also want regulations on whether the pages of the petition had to be numbered.

 

Mr. Tidwell and Mrs. Lambert then briefly discussed use of electronic reading and scanners and cost of newspaper inserts.

 

Mrs. Williams expressed the committee's concern and distress.  Citizens had the right to petition their government, and when a legitimate situation existed, the people should not have to be at the mercy of contradictory laws and regulations, she exclaimed.  Mrs. Williams expressed her intention to make the process clear.

 

Ms. Michelle Bero, Nevada Association of Counties, spoke again that she agreed with many of the comments heard in the meeting and the need for clarification.  Ms. Bero related she had worked with the Secretary of State's office last year on the proposal and had just received the amendments which they proposed two days ago.  She asked the committee if she could be allowed at least a few more days to present the amendments to her membership for their stance.

 

Mrs. Williams asked Mr. Scherer to work with Mr. Erickson and whomever he felt necessary to put the bill into a form which would be beneficial to the people of Nevada. 

 

There being no further business to come before committee, the meeting was adjourned at 5:00 p.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      BOBBIE MIKESELL

      Committee Secretary

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Assembly Committee on Elections and Procedures

June 3, 1993

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