MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 20, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:30 a.m., on Saturday, February 20, 1993, in Room 207, Cashman Field Center, 850 North Las Vegas Boulevard, Las Vegas, Nevada. The meeting was teleconferenced to Room 227 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster from Las Vegas. Exhibit C is the Attendance Roster from Carson City.
COMMITTEE MEMBERS PRESENT IN LAS VEGAS:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Dina Titus
Senator Raymond C. Shaffer
COMMITTEE MEMBERS PRESENT IN CARSON CITY:
Senator Mike McGinness
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Lawrence E. Jacobsen (Excused)
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Assistant
Maddie Fischer, Primary Secretary
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Leola Armstrong, Executive Director, Common Cause/Nevada
Senator Charles Blanchard, State of Arizona
The Honorable Michael E. Fondi, Nevada District Judges Association
Senator Craig Lewis, State of Pennsylvania
A. William Maupin, Past President, Defense Trial Lawyers of Nevada
Kathleen Sampson, Member, American Judicature Society
Marshal S. Willick, Attorney at Law
Robert L. Langford, Deputy District Attorney, Clark County, Nevada
Michael Cherry, President, Nevada Attorneys for Criminal Justice
Cal Potter, Nevada Attorneys for Criminal Justice
Knight Allen, Private Citizen
Cynthia Dianne Steel, Attorney at Law
Robert W. Lueck, Attorney at Law
Ed Uehling, KLAV Radio, Las Vegas
Edward A. Rivera, Private Citizen
SENATE JOINT RESOLUTION 5: Proposes to amend Nevada constitution to require selection of judges initially by merit and retention by election.
Senator James announced the hearing was convened to consider the question of adopting a merit selection system for district court judges and Nevada Supreme Court justices. He said passage of a measure in that regard would allow the question to be placed before the voters, since it would require a constitutional change. He explained to those present the process for changing the constitution "is and should be a very difficult one." The chairman said a resolution to change the constitution must pass two sessions of the legislature "in identical form," and then can be placed on the ballot for the next general election.
Senator James stated the question of merit selection in Nevada has been raised in the past and has been defeated. He said he and Senator William Raggio have co-sponsored S.J.R. 5, because they believe given some recent events in the political campaigns for judiciary positions, the issue is again becoming ripe for consideration, "as to whether we are utilizing the most effective method of choosing judges that assures both the quality of our judicial system and the independence and impartiality of our judiciary."
Senator James continued:
If you harken back to the founding of this nation, the founding fathers who we credit with being wise...sometimes credited with almost supernatural wisdom and foresight... adopted a constitution that we still have today, selecting our legislative branch in elections...the same with our executive branch...but emphatically set forth an independent judiciary which is not subject to elections and the politics that go along with those. That has survived until today.
Senator James pointed out the judiciary functions "very differently than other branches of government." He said the legislature is organized along party lines, and the legislators are expected to fall into categories defined by the traditional political parties. The chairman added, "We don't do this with judges." He said the best qualification for a judge is that he or she could sit with absolute impartiality before the litigants, and that his or her personal or political views will not color any decisions made. Most importantly, Senator James added, "...those decisions should not be affected in any way by those who supported his or her campaign." Senator James stated the current system of elections which requires judges to participate fully in the process, i.e., solicitation for campaign contributions, taking positions on issues and otherwise, is inconsistent with the duties required of the judiciary.
Senator James announced two legislators from other states, namely Senator Charles Blanchard of Arizona and Senator Craig Lewis of Pennsylvania, had agreed to appear before the committee in order to share their states' experience on the issue of merit selection. He said Kathleen Sampson, representing the American Judicature Society, had flown to Las Vegas from Chicago, Illinois, in order to share her background and knowledge on the subject.
The chairman pointed out Nevada has a system of merit selection for judges which is utilized when a vacancy in a judgeship occurs during the term of the judge or justice. He said something like 11 of 16 judges now sitting in the Eighth Judicial District Court "arrived there by judicial appointment." Senator James added many of those judges have faced "few if any contested challenges for election." He reiterated S.J.R. 5 would replace the initial election process for filling vacancies from a contested election to the same system of merit selection which now exists for filling vacancies. Senator James stated the present system is based upon a permanent commission selected by the Governor, the Board of Bar Governors, and the Chief Justice, and is made up of people from both legal and non-legal professions. He said the commission reviews the qualifications of all candidates for judicial office, and studies experience, background and merit, not their positions on issues. He added the Governor is provided with a list of three candidates from which he or she can select the person to be appointed.
Dennis Neilander, Senior Research Analyst, said there were some technical points on the makeup of the commission, which has proved to be an issue in other states. He stated the commission was established in 1976 and only deals with district court judges and Supreme Court justices. Mr. Neilander said in the case of an appointment to the Supreme Court, the permanent commission, made up of the Chief Justice, three members of the Nevada State Bar Association and three lay persons who are not attorneys, fill the vacancy. He said in the case of district court judges, the makeup of the selection commission includes the permanent commission and a member of the Nevada State Bar Association who is practicing in the district in which the vacancy occurs, together with one non-lawyer lay person from that district.
Senator Titus asked Mr. Neilander to review the history of past legislation on the subject of merit selection. Mr. Neilander said a
measure has been placed before the voters on two occasions, most recently in the mid-1980s. He said both measures were defeated.
The first person to testify from Carson City was Leola Armstrong, Executive Director, Common Cause/Nevada (Common Cause.) Her prepared statement is attached hereto as Exhibit D.
Senator Titus stated most of Ms. Armstrong's argument appeared to be based on the amount of money spent on judicial races, and she agreed with that premise. She asked if it would not be better to "attempt to clean up the election process...rather than to take away the election process?" Ms. Armstrong said she did not believe the election process would be "taken away" because the people of the state would be able to vote when the justice or judges "stand for their records." Senator Titus referred to Ms. Armstrong's argument regarding "the power of incumbency," and asked how may times judges or justices are "voted out" when the Missouri Plan is used. (See Exhibit D.) Ms. Armstrong stated she did not have those statistics, but reiterated the argument that "incumbency and money has been a distinct advantage...."
Senator McGinness asked Ms. Armstrong if she could provide figures regarding the turnover rate between judges who are elected and those who have to "stand for a vote of confidence." Ms. Armstrong answered she had statistics from the states of Ohio and Missouri and indicated she would make the information available to the committee.
Senator James referred to the "advantages of incumbency" as set forth by Ms. Armstrong and stated, "What we are really talking about is the need to have the money and the endorsement and the allegiance of special interest groups in order to get elected in the first place." He asked if Common Cause perceived these factors as a problem. Ms. Armstrong replied, "We not only perceive it as a problem, we perceive it as an evil." She added she found it hard to believe true justice could be dispensed when there is so much allegiance to special interest groups. Senator James said the "other side of the coin" is in situations where most judges are initially appointed to the bench, as they are in Clark County. He indicated they were using the merit selection system in those cases, but the judge was put in the position of having to solicit contributions in order to run for a second term in office. Ms. Armstrong pointed out the judge "doesn't have to stand on his record...he just flat out runs against anybody who chooses to run against him," to which Senator James replied, "precisely."
Senator James asked Ms. Armstrong to elaborate on the nature of Common Cause and to indicate the overall agenda of the organization. Ms. Armstrong answered:
Common Cause is a national organization that was created in 1971. It is operated out of Washington, D.C. with offices in every state. We accept no money from anyone but our members...we take no grants from the government, labor unions, special interests, or anyone else. ... We are not tax exempt, because we do lobby in Washington, D.C. and in the 50 states. Our total agenda...we are involved with ethics in government...the election process...voter registration...we are involved up to our eyebrows in the campaign contribution picture in Nevada. We worked very hard on the whistle-blower bill... we were successful...open records, open meetings ...that is our agenda...good accountable, responsible, responsive government, no more, no less.
Senator Shaffer referred to Ms. Armstrong's statement regarding "evil" in the election process, but indicated she condoned it in the re-election of judges. He continued, "Either it is one way or the other ...either you elect them from the start or you use the merit system from the beginning to the end...I don't understand your position." Ms. Armstrong stated Common Cause supported the position that judges are selected by a competent commission, and after a term is served, that they stand for re-election based on their record. She said Common Cause does not find that position to be inconsistent.
Senator Titus said if a judge "runs on his or her record, and the public will vote based on that record," there will be a problem since "...the public doesn't know what his or her record is unless he gets that message out in a campaign." She said money has to be solicited in order to run a campaign, "...so you are back to that evil, just as Senator Shaffer suggests." Ms. Armstrong stated she believed although money would have to be obtained "to stand on their record," they would not have to spend "well over $1 million to do it." Senator Titus asked what the difference would have been in the last election for the "person who ran unopposed." Ms. Armstrong answered, "The person in the last election didn't have to run on his record...he simply ran with no opposition." She added, "If he had to run on his record...we would all have had to hear something from him about what he had done ...but certainly that would not have taken $200,000."
Senator Adler stated he believed there should be a cap on expenditures by judges conducting campaigns. He said it was not logical for a candidate to run on their record while being allowed to spend vast amounts of money on elections. Ms. Armstrong said Common Cause "would like nothing more than to see caps on campaign contributions reduced on statewide races." She added it was more important to put a cap on what a justice or judge can receive, "...than any other race in Nevada."
Senator James asked Ms. Armstrong if there was a perception that contested races turn into "popularity contests" to see who can solicit the most special interest support. Ms. Armstrong agreed, adding a person attempting to "unseat" a judge or justice should be limited in the amount of funds expended.
Senator Shaffer asked if the constitutional rights of the candidates should not be recognized. He said trying to tell someone how much of his own money to spend to re-elect himself "would not fly constitutionally." Ms. Armstrong answered, "We are not talking about what he spends, we are talking about what he collects."
Senator Titus asked if there was not a judicial disciplinary procedure requiring a judge to run simply on qualifications, since there are limits on what they can say. Ms. Armstrong answered, "They cannot take each other on in an injudicious manner," but she believed "running on the record" would entail providing the people of the state with information concerning what that judge or justice has done in the past. She said she hoped S.J.R. 5, if passed, would be followed with a directive indicating "how to run on the record."
Senator James announced testimony would be taken from several experts in the operation of the "Missouri Plan," and questions could be directed to them regarding how the merit selection process operates.
The first to appear in Las Vegas was Arizona State Senator Charles Blanchard, a member of the Senate Committee on Judiciary in that state. He said he would testify concerning merit selection in Arizona, realizing conditions are different in each state. Senator Blanchard provided the committee with a master's thesis submitted in connection with the graduate program for judges of the University of Virginia School of Law, authored by Judge John M. Roll, entitled Merit Selection: The Arizona Experience. The document is set forth in these minutes as Exhibit E. Original is on file in the Research Library.
Senator Blanchard indicated Arizona has utilized merit selection since 1974 and was the result of an initiative drive conducted by the citizens of the state. He said Arizona utilized a "Missouri-style Plan" with a few differences. The senator indicated the first major difference was the merit selection for trial court judges only occurs in the two most populous counties. He said the 13 rural counties still use the election method. Senator Blanchard stated merit selection was also utilized for selection to the Arizona Court of Appeals. He said the initial selections were made by a commission, with three or more names being provided to the governor, who makes the appointment.
Senator Blanchard said until the past year, the commission consisted of two lay members to each attorney, but that has since been refined "out of concern that the judicial selection process was not reflecting the diversity of Arizona...and the concern there was inadequate public participation in the merit selection system." He said the size of the commission has been expanded with a requirement that lay members "come from different geographical parts of the county."
Senator Blanchard explained how merit selection has worked in Arizona. He said a poll was conducted of all attorneys in the state, asking questions regarding whether or not a particular judge should be retained. Senator Blanchard stated in 1978 the bar association of one county opposed the retention of three judges and of those three, two were defeated in the election. He added if a judge is not opposed, he is not allowed to campaign, but a campaign committee is allowed if that judge is opposed. He cited a case of a judge who was convicted of a misdemeanor in another state but was retained by a very close vote. He added, "In retrospect the newspapers believed it was because they did not publicize well enough the need to oppose this judge."
Senator Blanchard stated he was a supporter of the merit system as it now stands and believes it works very well. He said the system has improved the quality of the people seeking judgeships. The senator added there are more people going through the selection process now than there were when persons were running for office. He said he believes the judges selected by this process "are very well qualified and well respected by both the public and the members of the Arizona State Bar Association. Senator Blanchard said another advantage of the merit selection process is the screening process done by the judicial commission, which can "put a check on the Governor's appointments." He added a third result is, "Judges have been removed from politics," although some politics are going to be involved in working through merit selection. He said persons who have been placed on the list of suggested candidates, "...have all their friends call the Governor and the judicial selection committee." He added, "Democratic governors tend to appoint democrats, and republican governors tend to appoint republicans." However, the senator said, there are enough exceptions to this rule to suggest politics has been removed to a great degree.
Senator Blanchard stated except in the few cases where there is active opposition to retention, the judges do not have to solicit campaign contributions, which is generally the practice in other states. He said another argument in favor of merit selection is the lack of public interest in judicial elections. The senator said a poll conducted in 1974, when they were debating the issue of merit selection, showed the electorate could not remember who they voted for Supreme Court Justice in the last election.
Senator Blanchard referred to the retention process and said although the "commission process" is working very well for the selection of judges, "...the retention process needs some work." He said the problem of public involvement shows in voter apathy, since there may be up to 16 names on the ballot. Senator Blanchard added, "It is very difficult to defeat a sitting judge." He indicated they are dealing with the problem by having the Supreme Court develop a "full-fledged evaluation process." The senator said evaluations will be made by jurors, victims of crimes, and witnesses, together with a cross-section of persons who have access to the judge or justice. He also recommended another approach:
You have a judicial commission to evaluate...also have them evaluate sitting judges and make recommendations as to whether or not that person should be retained or not retained...if the recommendation is to retain...a simple majority will keep the person in office. If they recommend the person not be retained, require...a 60 percent vote... the people can make the decision.
Senator Shaffer asked Senator Blanchard if Nevada should take a look at its commission structure, since the majority of the commission members are attorneys. Senator Blanchard answered he was a strong supporter of a commission not dominated by lawyers and suggested a two-to-one ratio of non-lawyers to lawyers, such as utilized in Arizona. He said he was also a supporter of open meetings of the commission.
Senator Blanchard further explained the retention process, indicating judges are placed on the ballot after they have been in office a certain number of years. He said the ballot question is, "Should Judge ... be retained?" However, he pointed out, there is no opponent.
Senator Titus stated she supported the Missouri Plan at one time but added, "The more I look at it and hear about it, the less I am inclined to believe it really will do what we hope it does." She added she believed the cost would outweigh the benefits. Senator Titus reminded Senator Blanchard of his comments and Ms. Armstrong's, which indicated a benefit was the removal of politics from the process, and said, "If there is still an election, I don't think you can really take politics out of the judicial process." Senator Titus continued:
The costs, on the other hand, are much greater than that slight potential benefit, when you lose accountability. The public is saying more and more...we want to see what government is going...we want to participate...we don't like government that is removed...this would be a move in the opposite direction from that national trend. I think if you use that closed circle, with lawyers and a few people making those decisions...you limit access to women, minorities...I don't think those people will have the opportunity to get to be judges, than they do with the more open election process.
Senator Blanchard countered by saying the experience in Arizona with respect to diversity was good. He said women found it very difficult to be elected to judgeships prior to the establishment of the merit system, but at this time the names presented to the Governor are comprised of 50 percent women and 50 percent men. Senator Blanchard stated the number of Hispanic names submitted has also increased. He reminded Senator Titus of his comments regarding geographical diversity. Senator Blanchard referred to the subject of "accountability" and said he agreed with Senator Titus regarding the public's demand for the same. He added he believed there was more public participation in the merit selection process than there would be in judicial elections. Senator Blanchard concluded: "A trial court bench of 60 judges...of whom 20 are up at any given time...it is extraordinarily difficult to have contested elections in every case really reflect accountability."
Senator James indicated Kathleen Sampson would be testifying concerning statistics dealing with the fact women and minorities have had better success becoming part of the judiciary through the merit selection process than the election process.
Senator McGinness asked Senator Blanchard to explain the method by which opposition was filed against a sitting judge during the election process. Senator Blanchard said judicial ethics canons governing judges do not allow them to campaign, unless there is opposition. He said that opposition can come from anyone, and several groups have waged campaigns against retention. Senator Blanchard continued to say a victims' rights group known as "We the People of Pima County" opposes every superior court judge up for retention in the county on the grounds the judges are not being sensitive enough to victims. He also indicated the county bar associations will oppose judges who do not fare well in the screening process. Senator McGinness asked if an individual can file opposition to a sitting judge. Senator Blanchard indicated an individual can file at any time. Senator McGinness asked how a sitting judge would know if he had to "gear up" a campaign in order to raise money if opposition were filed. Senator Blanchard stated the opposition in Arizona was usually "very obvious," and it has never been a problem.
Senator James thanked Senator Blanchard for his testimony, saying the suggestions made were well taken.
Speaking from Carson City was the Honorable Michael E. Fondi, District Judge, Carson City, Chairman, Legislative Committee, Nevada District Judges Association. Judge Fondi stated he has been a district judge since 1977, and was the third judge selected under the present judicial selection commission process, and the only judge remaining who was selected as a result of the application of that process. He said the judges' association at one point passed a resolution in support of a modified Missouri Plan system to be instituted in Nevada. However he said, in 1988, before the last joint resolution dealing with merit selection went to a vote of the people of Nevada, the association took a vote among the membership and found they were divided as a group as to whether they supported the modified Missouri Plan. He said there were several judges who felt strongly they would rather run for election against an opponent, than to run on their record. At that time, the vote of the association was not to take a position, either for or against support of a modified Missouri Plan. Judge Fondi stated his individual position was to favor the modified Missouri Plan. He said some of the "evils," as alluded to by Ms. Armstrong, which surfaced in the last election for Supreme Court Justice, were of no benefit to either the people or to the judiciary.
Judge Fondi said S.J.R. 5 is good legislation, although it would need a few amendments. He stated he believed it was necessary to retain the judicial selection commission in order to make a modified Missouri Plan system work. The judge indicated he had talked with a member of the commission recently and was advised the commission had tried to "depoliticize the process as much as possible." He advised the committee members to talk with members of the commission, in order to learn how the process operates.
Judge Fondi suggested amendments to S.J.R. 5, "being mindful...if a comma is changed, you have to start the process all over again." He referred to page 2, line 24 of the bill, and suggested the deletion of all language, beginning with "But no such change...," through line 40, "...office of district judge." Judge Fondi referred the committee to a Nevada Supreme Court case, State Bar of Nevada v. List, 97 Nev. 367, and said the language of the case was self-explanatory. He said he believed "...if we are going to clean this particular portion of the constitution up, we should do it all consistent with existing Nevada case authority."
Judge Fondi's second amendment would appear on page 3, sec. 15. He said there was presently before the legislature Assembly Joint Resolution (A.J.R.) 22 of the 66th Session, which was passed by the 1991 legislature, and was up for consideration again this year.
ASSEMBLY JOINT RESOLUTION 22
OF THE SIXTY-SIXTH SESSION: Proposes to amend Nevada constitution to allow increase in salary of justice of the supreme court and district judge during term.
The judge said that bill would amend section 15, and would make changes permitting the legislature to deal with the salary problems
which have occurred in the past. He said they go through a "constitutional charade" in order to grant raises to judges.
Judge Fondi concluded:
Our sister state of California showed us that a modified Missouri Plan indeed does work, when most of the Supreme Court of that state was removed in the retain or not retain election process. ... I think that proves such a system can and does work, when the people perceive the justices are not being responsive to what the people perceive to be their responsibilities under the constitution....
Senator Adler asked Judge Fondi if he believed the bill should be amended to have the more populous counties use judicial selection while the rural counties maintain the election process, such as is done in Arizona. Judge Fondi disagreed, stating he believed they should be consistent throughout.
Senator James thanked Judge Fondi for his testimony and stated the committee would seriously consider the changes he suggested, together with other suggestions made during the hearing "...because we want to make this the best plan we can adopt."
Testifying from Las Vegas was Pennsylvania State Senator Craig Lewis, who stated the Pennsylvania legislature was going through a process very similar to what is happening in Nevada with regard to merit selection of judges. Senator Lewis addressed the committee with regard to Senator Blanchard's testimony:
Although the subject has very much in common, the circumstances are enormously different. ... I think it is important to tell you a little of Pennsylvania's background, so you can appreciate the context in which these issues are being debated. ...
Senator Lewis stated the Pennsylvania constitution was formulated in 1790 and has undergone four major changes since that time, through constitutional conventions. He said at the time the constitution was adopted, Pennsylvania had a process for the appointment of judges. Senator Lewis indicated the process was "thrown out" in 1850 because of outrage by the voters. He stated a constitutional convention was convened in 1850, because the voters "wanted accountability...and the opportunity to participate in the process." The senator said a system of election of judges was put into place at that time and it remains today. He explained the appellate system in Pennsylvania:
The Superior Court is the first court of appeals from all of the criminal and civil trials; the division called the Commonwealth Court has special jurisdiction over issues involving government entities; the Supreme Court, at its discretion, hears those cases it chooses that have already gone through the Superior Court and the Commonwealth Court.
Senator Lewis said the judges in all of the above courts are elected, and have been since 1850. He said there have been two constitutional conventions since 1850, the most recent in 1968, at which time the subject of selection of judges was "hotly contested and debated." The senator stated the decision was made not to change the current system. He added a question was placed on the ballot in 1969 in order to allow the people of Pennsylvania to decide what to do concerning this issue. Senator Lewis indicated a proposal to appoint judges on a merit system was defeated by approximately 20,000 votes, which was a slim margin.
Senator Lewis stated three major circumstances have changed in Pennsylvania since 1968, with two directly relating to the election process:
The first...we have had an emergence of 'geopolitics' in Pennsylvania. Our two major population centers are in the southeast around Philadelphia and in the southwest around Pittsburgh. ... In the last 25 years, there has been a very strong 'geopolitical' affiliation among people in the southwestern part of the state. ... If the people in the southwest, whether Republican or Democrat, become aware that there is a candidate from the southwest, it is their overwhelming inclination to support that individual, unless there is a strong reason to do otherwise. ... In judicial elections, where there is no awareness of the backgrounds of the candidates, the 'geopolitical' inclination has had a strong presence...
We have had in the past 2 or 3 decades...a virtual disappearance of significant influence on the part of political parties...the parties themselves have very little material influence any longer. What we have seen is that candidates for election have become individual entrepreneurs....
Senator Lewis provided the committee with articles from the Philadelphia Daily News, The Pennsylvania Law Journal, and the Philadelphia Inquirer regarding State Supreme Court Justice Rolf Larsen. Those articles are collectively attached hereto as Exhibit F. He said Justice Larsen, while a county court judge gained "all kinds of attention for himself" by throwing 170 men in jail because they were delinquent in their support payments, and he was "off and running in terms of a public relations campaign for the Supreme Court of Pennsylvania."
Senator Lewis said another thing which has occurred as a direct result of the constitutional convention in 1968 is the implementation of a concept identified as a "unified judiciary." He stated the Supreme Court of Pennsylvania has defined that as meaning "they are all-powerful and virtually unaccountable." The senator indicated the Supreme Court conducts all of its business "without any obligation to explain or account for their activities to the public," because they are an "independent branch of the government." Senator Lewis said when ethics legislation was passed 15 years ago, it applied to "all public officials" but the Supreme Court exempted itself, saying the legislature could not define standards for its conduct. Senator Lewis continued:
I listened with interest as the representative from Common Cause talked about candidates for your judiciary running on their record...if that happened in Pennsylvania, Common Cause would go nuts, because the concept of judicial candidates talking about issues is an anathema; there cannot be campaigns conducted upon issues or opinions about subjects that might come before the court....
Senator Lewis stated events involving the judiciary in Pennsylvania during the past 15 or 20 years have "built a public sense about the need to create change." He indicated the process for changing the state's constitution was very much like that in Nevada. The senator said they began a process intended to change the judicial discipline system over 5 years ago. He indicated two consecutive sessions of the legislature approved a major change in the system, but at the time it was going to be placed on the ballot, "...the Supreme Court ruled it unconstitutional." Senator Lewis continued:
Ponder that...we are in this confrontational system in which the legislature is trying to make constitutional changes that will dramatically affect the court...and before the people have a chance to vote on it...the very court that is going to be changed is ruling them unconstitutional.
The senator from Pennsylvania indicated its legislature has "gone back to work" and is attempting to follow the road map the Supreme Court has laid out. He said at present the proposed system of judicial discipline change has been approved by their legislature in two consecutive sessions, and the measure will be on the ballot for voter consideration in May of this year, "...unless the Supreme Court decides to say something about it between now and then."
Senator Lewis referred the committee members to Exhibit F for the complete story concerning Chief Justice Rolf Larsen, who was reprimanded for his conduct on the Supreme Court. The senator described the case as "absolutely phenomenal." He said because of that situation, the court reform advocates saw a wonderful opportunity to build upon the controversy and to "move further into the court reform arena." Senator Lewis said the issue has become a "celebrated cause" and is called "the solution to the problems that have been created by Justice Larsen."
Senator Lewis indicated a "whole series of alternative judicial reform issues" have also been presented in the State of Pennsylvania. He reiterated the "tremendous political influence" which exits within the Supreme Court because of their extreme power. The senator stated one of the legislative proposals, in addition to merit selection, is to separate the administrative functions of the court from the adjudicatory functions. Senator Lewis said he believed California was the only state presently using this method.
Senator Lewis stated the legislature believed the attorney general of the State of Pennsylvania would be the proper person to "get to the bottom" of the allegations made by Chief Justice Larsen, so confidence could be restored in the courts. He continued, "Lo and behold, our attorney general served as a character witness for Justice Larsen in his most recent disciplinary matter...." Senator Lewis indicated a special prosecutor has now been selected to conduct an investigation. He said there is an indication an impeachment proceeding may ensue.
Senator Lewis indicated merit selection is "widely supported" in Pennsylvania by the press, reform groups, the League of Women Voters, bar associations and other government groups across the state. He said it is also "widely opposed" by political parties, labor, the trial lawyers and by the minority communities, although there has been testimony that greater diversity is an advantage of merit selection. Senator Lewis said the minority communities are opposed because, "the power to vote is seen by them as being extraordinarily important...." He said other arguments in opposition to merit selection are, "...elitism...who is going to pick the pickers...concern about the commission...taking away the right to vote...." Senator Lewis stated there were no problems within the lower courts, and many who have testified in Pennsylvania hearings indicated the reform should be with the election process itself.
Senator Lewis provided the committee members with copies of testimony before the Pennsylvania Senate Judiciary Committee hearing on merit selection, as follows: Testimony of William C. Cassenbaum (Exhibit G); Testimony of the Honorable Phyllis W. Beck (Exhibit H); Testimony of Edmund B. Spaeth, Jr. (Exhibit I); and Testimony of Carmen P. Belefonte, Esq. (Exhibit J). Exhibits G, H, I and J are on file in the Research Library.
Senator Lewis stated he was a proponent of merit selection in Pennsylvania but added he was troubled by some of the issues which were raised by the opponents. An article appearing in the Philadelphia Inquirer following a hearing on the issue of merit selection, is attached hereto as Exhibit K.
Senator Lewis concluded:
First of all, regardless of what we do...or what you do in Nevada...there is no system that is going to provide a guarantee against abuses. It is only as good as the people who are there...but there will be problems within the system. ... From the testimony I have heard, the sense is the will of the majority is an anathema to an independent judiciary...our history is one of a representative form of government, and I don't see any conflict between a process of selecting judges as long as those involved are accountable to people who have the chance to vote. ... Compared to the inefficiencies of the election process, it is something I hope we are prepared to work through....
Senator Lewis pointed out two portions of S.J.R. 5 which "would not work" in Pennsylvania. The first, he said, regarded the judicial selection commission. The senator stated, "If anyone in Pennsylvania suggested any of the members be selected by the bar association, it would not be well received." He added, "People in bar associations...and I am one...are not responsive, responsible or accountable to anybody...." Secondly, he stated, "We would not permit a governor to nominate members for a court without there being a review process open to the public." He suggested the committee consider the possibility of an advise and consent role for the legislature regarding any judicial nominees.
Senator James commented regarding the 30 states which have adopted a merit selection program and said some have the legislative oversight system or "advice and consent" such as exists in the federal system. He said this assures accountability to the voters. He asked Senator Lewis if this provision was part of the system when they tried to amend the Pennsylvania Constitution, since it was not part of the original Missouri Plan. Senator Lewis answered the only debate was whether the vote should be a 2/3 vote or a majority vote. Senator James indicated there could be a problem since the Nevada Legislature only meets every 2 years.
Senator Titus asked if the judges in Pennsylvania were elected on a partisan ballot, and Senator Lewis answered they were, and the length of their term was 10 years, once elected. He said at that time, the judges stand for "retention election." Senator Titus asked if the second election was a "vote of confidence" election, such as is set out in the Missouri Plan, and Senator Lewis answered it was.
Senator James thanked Senator Lewis for his testimony. Senator Lewis stated the committee's actions in Nevada "will be of tremendous interest to the judiciary committee in Pennsylvania."
The next to testify was A. William Maupin, Past President, Defense Trial Lawyers of Nevada. Mr. Maupin indicated his desire was to offer some insight into the current selection process. He said he had gone through a judicial selection process, being one of three finalists in the last selection for district court judge in Clark County.
Mr. Maupin stated he recognized the "tremendous concern" exhibited any time a proposal is considered which is designed to disenfranchise voters. He added the Missouri Plan "is perceived to do that "but said in his view it did not do that at all. Mr. Maupin said, "It improves the system...it only changes the method by which we originally select judges." He added it does not disenfranchise the voters from the ability to approve or disapprove the performance of a particular judge or justice. Mr. Maupin outlined the structure of the judicial selection commission and said whenever a judicial selection for district court judge occurs, the constitution requires the Nevada State Bar Board of Governors appoint a lawyer to serve as a temporary member of the commission. He indicated the lawyer must reside in the county in which the judgeship vacancy has occurred, and one lay person is also selected. Mr. Maupin said this shows the system is not "lawyer driven or lawyer controlled."
Mr. Maupin said a lawyer who wishes to apply for a judgeship position submits a 70-page application, which "is as comprehensive as anything anyone ever fills out in their lives." He said the applicant's personal background is "severely examined." Mr. Maupin outlined the situation when he was among the candidates saying, there were four women and 11 men, and he was one of the three finalists, two of whom were women. He continued:
Two selection processes ago, a woman was selected. In this last process, a woman was selected. In the process a couple of years ago, a black, male lawyer was selected. I don't think there is any question but that this process facilitates to a much greater degree than the elective process, the ability of women and minorities...to be represented on our bench.
Mr. Maupin stated S.J.R. 5 "...was stimulated by the most controversial, ugly and disgusting Supreme Court race in the history of this state." He said both of the candidates "emerged from the process terribly damaged," and added the public confidence and the judiciary "was seriously undermined." Mr. Maupin addressed the issue of the election process itself. He said you can limit contributions, "...but you can never limit spending" and added, "If you limit contributions, you seriously create the problem of disenfranchising certain groups of people who could never run for these offices."
Mr. Maupin stated the defense trial lawyers would encourage a provision whereby the method of judicial selection is changed, "...so we can ensure ability, integrity and independence...but we still enable the general public to vote on these people, once they have been selected."
Senator Shaffer asked Mr. Maupin to comment on the wisdom of using the merit system for the initial selection, with the election process to be utilized after that time. Mr. Maupin replied:
When you initiate an individual's tenure on the bench by the election process, then you have a selection process which is politicized. ... This is what has caused a lot of these problems. ... If we take the process through a merit selection, then let the electorate decide whether or not that person has done his or her job appropriately. I think we have an appropriate mixture of the best of both worlds.
Senator James congratulated Mr. Maupin on his "articulate statement of the predicate for this consideration." Senator Titus asked if there was political pressure to appoint a minority to replace a minority who leaves the bench. Mr. Maupin answered the political pressure "is very short lived." He said the screening process was very thorough, and all applicants must go through a rigorous application process. Mr. Maupin said there were always going to be "sour grapes," on the part of those not selected. Senator Titus stated:
You are trying to suggest the process benefits minorities, and I am trying to suggest that in this case perhaps the minority was chosen because it was a replacement for a minority, and generally the process would not work necessarily to that person's advantage.
Mr. Maupin replied, "Because of the political environment, there was support for those people, but it was the judicial selection process itself that enabled these people to surface."
Senator James asked how Justice Miriam Shearing originally was selected to the bench in Clark County, and Mr. Maupin answered she ran for election and was the first woman elected to be a justice of the peace and also the first woman to be elected to the district court bench. He also brought up the point of Justice Shearing's wealth and stated:
This emphasizes the point...if you try to address this problem by limiting contributions without capping spending, you are only going to be able to get people like Miriam Shearing to run. If you want qualified men and women in all walks of life to be able to serve in these positions, you have a better chance with a merit selection process of some kind.
The next to testify was Kathleen Sampson, Member, American Judicature Society (AJS), from Chicago, Illinois. Senator James asked Ms. Sampson to comment regarding the committee's concerns about merit selection, and in particular, "...whether or not this has the effect of disenfranchising the voters...whether it has a positive effect on the ability of women and minorities to enter the judiciary."
Ms. Sampson spoke from a prepared statement, which is attached hereto as Exhibit L. Highlights of her statement include:
Because the code of judicial conduct places constraints on judicial speech and judicial campaign conduct, it really makes any meaningful discussion of issues inappropriate. ...
We see the role of judge as different. Judges should not be responsive to constituencies...to the public will... judges are there to be independent and to decide cases on the basis of facts and the law. They should not have to be looking over their shoulders wondering what the public will is on any particular issue.
...
History has shown that merit selection has brought more women and minorities to the bench than any other method.
...What is significant...merit selection was responsible for bringing the first African-American judge to the bench ...
The problem with retention elections...how does the voter know anything what this candidate has done or what his or her qualifications are?
Ms. Sampson referred to the evaluation commissions which have been established in Alaska, Colorado and Utah (see Exhibit L, page 5), which address the problem of lack of knowledge on the part of the voters. She said this method is still being tested and indicated in Alaska, judges who were not up for retention until 1994 asked to be part of the process, "...so they could get feedback on their performance in office."
Senator James asked Ms. Sampson to comment on the fact that many times the money raised in judicial campaigns is raised by the attorneys who appear before the judges. Ms. Sampson stated AJS feels "money is the most significant problem with the popular election of judges." She continued:
Even though a candidate may say, 'I never let it enter my mind who contributed to my campaign,' most judges themselves will admit they do know, and they are concerned about the appearance it gives to the public that maybe justice can be bought. ... Some say you can deal with that by placing caps on contributions or spending...but we have not heard of a system that has effectively regulated that issue and has given the public the sense that this problem of money in election campaigns is under control.
Senator James asked Ms. Sampson to address the issue of disenfranchising the voters and asked how the problem has been overcome in states in which merit selection is done. Ms. Sampson replied in the states where merit selection has been passed by the voters, the advocates have been able to make the case that voters "really don't have a way of getting a handle on what the qualifications of the candidates are." She continued:
You have to contrast that lack of knowledge with the kind of information described by Mr. Maupin...an extensive questionnaire that brings out a lot of information...I think in the states where it has passed, the proponents have been able to make the case that the voter really doesn't know...through hearings around the state, they have been able to get people to understand that this process in the long run...will bring high quality judges.
The next to testify in favor of S.J.R. 5 was Marshal Willick, speaking in an individual capacity. He said he was an unsuccessful candidate in the recent family court elections. Mr. Willick said it was "widely perceived" by those who were attempting to be elected as judges, "...that it was almost entirely useless." He said he took a poll of a groups of people involved in community activities "to find out what they knew and how they knew it." He said there was not a single person that had any idea what the family court was going to do and who any of the candidates were. Mr. Willick continued, "That pretty much tells me we have established a random number generator for selection of judges...which I submit is a terrible way of deciding...." He said he may not have fared any better under a judicial selection system, but added "the difference would have been what we went through to get from the beginning to the end." Mr. Willick said he shut his law practice down for 6 months and indicated there were many attorneys who just "did not want to run that gauntlet" because of the personal,
financial and emotional toll which is expended. He said the minimum required budget to begin the process would be $134,000.
Mr. Willick suggested the creation of a citizens' advisory commission to avoid the appearance of having "the good old boys of the legislature, the bar associations and the judiciary running the process." Senator James suggested Mr. Willick might be the ideal person to be involved in such an advisory commission.
Mr. Willick remarked he was part of the "core committee" which developed the current judicial evaluation. He said the purpose of the project was to attempt to obtain direct and indirect public feedback both from members of the bar and the people they have represented in court. He said they attempted to have the public gain access to the judiciary so they could evaluate what goes on. Mr. Willick concluded:
My experience tells me that in the 3 minutes...you are given to stand up, explain who you are, the job you are running for and the court system you hope to create...and why you are different than the other people you are running against...you can't say anything...the realities are that the judicial election process does not work necessarily to produce qualified people for the bench...I believe superior alternatives are available.
Senator James commented:
I guess you have to ask the question...if there is not a perception judges are influenced by the support of various groups...then why are these groups so ardent in being involved in the process of judicial selection...that is something we should explore in this committee.
The next to testify was Robert L. Langford, Deputy District Attorney, Clark County, Nevada. Mr. Langford emphasized he was speaking on his own behalf and was not expressing the opinion of the Clark County Office of the District Attorney. Mr. Langford repeated the premise that "...our founding fathers saw fit to create a judiciary that was appointed to lifetime terms without election...because they had a concept that justice is blindfolded." He said at this time in Nevada, "justice has taken off the blindfold, thrown down the scales and has picked up a tin cup in order to solicit campaign funds." Mr. Langford continued:
A large portion of what judges do today is toward the end of gaining campaign contributions. I speak today as a government attorney who is unable to make large contributions to the campaigns of judges...I go into a courtroom every day and stand before judges, where it is probable that my opponent has in fact made substantial contributions to that judge. I have made none, and the judge knows that I probably in the future will make none. I stand today to tell you that places me at a definite disadvantage.
Mr. Langford stated everyone would like to believe judges are fair and unbiased and would look at the merits of a case without regard to the advocates before them. He added, "The truth is that is probably beyond the capabilities of most human beings, regardless of their intentions." Mr. Langford said the greatest opposition to S.J.R. 5 will come from those factions that can raise substantial amounts of money to support individual judges. He referred to statements by the opposition that "this disenfranchises the individual voter from being able to have their voice heard in the selection or retention of judges." Mr. Langford said he did not believe that would occur in Clark County. He referenced the last election for justice court justices and stated:
There were three justices required to run in an election. Those three justices all ran unopposed...there is a reason they ran unopposed. Prior to the deadline for filing, they all held massive campaign parties. They all raised substantial campaign war chests...it was well known they were going to spend those funds to be elected. So, when you decided whether or not you were going to run against that person, you knew you were walking into a battlefield where your opponent had better weapons...qualified candidates are choosing not to run in an election process where the cards are stacked against them, and the costs of losing are too great.
Senator James asked those present who were in opposition to S.J.R. 5 to step forward to testify. The first to speak was Michael Cherry, President, Nevada Attorneys for Criminal Justice. He said he has practiced in Nevada for 23 years, having been a public defender for the first 7 years. Mr. Cherry said he has seen the growth of the judiciary in Nevada and the establishment of the merit selection system, "...which we were told would satisfy concerns regarding selection by merit." He continued:
I believe heartily, both as an individual and as President of the Nevada Attorneys for Criminal Justice that what we have is not broken, and therefore we don't need to fix it. If they are basing it on one election...I think it is wrong to try to undo what the voters have said we don't want... because of one race.
Mr. Cherry cited several cases of very capable persons who were elected to judgeships, "...who could not have received an appointment through merit selection." He referred to comments by Mr. Maupin and said, "He knows very well it was politicism that got some of the people to these finals." Mr. Cherry indicated names of several people "...who would not be district court judges today under the system you want to impart on our citizens."
Mr. Cherry stated there was a "modified merit selection system" now, but added if someone else feels they are qualified, they have a right to run. He added:
If you are a purist...if you really believe in the separation of powers and you believe in...this system, then we need an independent judiciary...then there should be appointments for life...and you will have to raise the salaries....
Mr. Cherry said the persons who have run for judgeships over the years "have been a credit to our bar...." He said if the people he speaks for thought passage of S.J.R. 5 would "make better people by having the Missouri Plan...we would be up here screaming...but we don't think so." Mr. Cherry also stated he believed the judges "could care less" what he has contributed to a campaign when he appears before them.
Mr. Cherry reiterated his position that the election of judges be maintained.
The next to testify was Cal Potter, Nevada Attorneys for Criminal Justice. He indicated while in law school in Arizona, he listened to arguments on the same issues discussed today regarding special treatment by judges to those who contributed to their campaign. Mr. Potter said he did not believe it was true then and does not think it is true now. He referenced earlier testimony regarding Arizona's bifurcated system between rural and urban interests. Mr. Potter indicated Nevada is using a modified Missouri Plan today thereby having "the best of both worlds" in terms of appointments. He said it was important not to "overreact" to a particular campaign. He added there was a need to consider the issues regarding election reform, such as campaign contribution limitations. Mr. Potter concluded, "Although we speak in opposition...we too are interested in the neutrality of a judiciary which is responsive to the needs of all the citizens." He asked the committee "not to penalize the citizens who are there to elect these individuals."
Senator James reminded Mr. Cherry of his comment regarding the imposition of a new system of selection on the people and said he would like to make it clear "...that what we are proposing is just to allow them to again vote on the issue." He said although he was the prime sponsor of S.J.R. 5, he has an open mind and wants to look at the question of whether merit selection should be developed. The chairman added he was willing to listen to suggestions regarding modifications to the bill and added there were to be more hearings held for that reason. Senator James also referred to Mr. Cherry's statement regarding a judge "being required to stand up in the union hall and give a position on issues," and said he had a problem with that premise. He asked, "Why should a judge be evaluated on his or her stand on an issue, when that should not play any role in the decision-making process on the bench?" Mr. Cherry responded he gave credit to the electorate and said they understand what they are talking about. He said he believed judges running for election should "meet and face the people." Senator James stated the people have a right to know what he does or does not support when he is running for election, but said a judge's responsibility is only to interpret and apply the law, and not to seek to change the law in any way. Mr. Potter stated Senator James' explanation "...is the type of response you would hope to have from the judicial candidate." He added the issue of the Missouri Plan was raised in recent debates between the candidates for Supreme Court Justice. Mr. Potter stated Judge Miriam Shearing, the successful candidate was not in favor of the plan, but Judge Thompson was. He said that topic, together with the question of whether there should be an intermediate court of appeals, were the type of questions which were addressed in the campaign.
Mr. Potter stated he was concerned about the retention issue and indicated a special interest group could attempt to convince the voters to reject any or all judges. He asked:
How does a judge respond to that type of special interest...he is not running against an individual, he is running against the wind...against a particular interest group who is going to try and break up some specific case on which he made a ruling....
Senator James asked:
Why do you find these special interest groups...who have an agenda...usually an agenda of either changing the law to what is perceived to be their benefit or to pursue an ideal ...why do you see these groups supporting one or the other candidate? ... I think that is a question in this debate I would like to see answered for the public, because the average citizen doesn't have a special interest group looking out for his or her agenda. We all agree it is appropriate for those people to endorse one candidate...one political party or the other to go into the legislature and change the laws for the better. But a judge is a minister of justice...to the litigants before him or her...that is my concern.
Mr. Potter answered there are certain perceptions related to interest groups regarding endorsements. He said it is clearly within the parameters of debate, "...whether you side on a constitutional issue...." Mr. Potter added he has never seen an interest group ask for a preview of what a judge's decision would be on a given issue. He said no credible candidate for judicial office would give that type of opinion. He said his organization had no objection to a limitation regarding special interests groups. Mr. Potter added they were in agreement regarding the issue of neutrality and impartiality on the part of the judiciary. He said their argument was those running for the judiciary should be challenged by other candidates.
The next to testify was Knight Allen, testifying on an individual basis. He said he was speaking as a private citizen and referred to a newspaper article which quoted Chairman James' saying "...the Supreme Court election shows graphically the problems of the election system" and stated he did not agree with that opinion. Mr. Allen said "the election system did nothing...we the people did nothing...it was the candidates who made fools out of themselves." He said it was not the political system, and "certainly not we the people" who did that. Mr. Allen added, "You can't start with the fact that occasionally candidates go off the deep end and conclude...what we have to do...is change our constitution." He said this would strongly reduce the direct control the people have over an entire branch of government. Mr. Allen continued, "It is a starting point and a conclusion that just doesn't wash...I would like you to reconsider."
Mr. Allen again referred to the newspaper article and said there was a discussion about a process that would replace the one now used in the state, that being a retention election. He compared a retention election to what is currently going on in Cuba and said, "The people are going to be able to walk into the voting booth and vote to decide whether to retain the Castro regime." Mr. Allen said he did not believe American political leaders or the American people would describe this as a "genuine, free election." He then referenced S.J.R. 5 and said:
In Castro's Cuba you have a no-choice, non-competitive, up- and-down, yes-or-no election. In Nevada, under S.J.R. 5 we will have a no-choice, non-competitive, up-and-down, yes-or no-election...there is something wrong with this picture.
Senator James asked Mr. Allen if he perceived the Constitution of the United States, which provides for the merit selection of judges for lifetime appointments, as being equated with the Communist system. Mr. Allen answered the national constitution was "a framework put together by 18th century men...women were chattel and blacks were property." He said the American constitution has evolved over a long period of time and the judiciary has not been a part of that evolution. Mr. Allen indicated the committee "had a choice as leaders" to decide whether to maintain the Nevada constitution's "core principle" that states the people have the right to directly elect all three branches of government, "...or choose to back away from it." Senator James stated:
You are also suggesting...some sort of similarity between this and a ruse election in a third world, communist country, and I frankly don't think there could a be less apt analogy than that.
Mr. Allen repeated his position that there were "tremendous similarities." He added he hoped the committee would not be "too surprised" if the measure was finally placed on the ballot and a majority of Nevadans "...are not in any hurry to rush into the voting booth to give up our core political rights to directly elect the judicial branch of government." Mr. Allen said he did not believe the vast majority of Nevadans would "buy into this system."
Mr. Allen referred to the matter of money in political campaigns and said it was "irrelevant" when compared to the issues stated above. He said he favored anything which the legislature could do to "bring the campaign finance thing under control." However, he added, "If the only choice is to take this fundamental right of the people away, then it is unacceptable."
Mr. Allen referred to the judicial selection commission and stated, "Core to the Nevada constitution is the concept that in the end you never trust a small group of handpicked people who then in turn appoint a small group of handpicked people." In conclusion, he requested S.J.R. 5 be "killed."
The next to testify in opposition to S.J.R. 5 was Cynthia Dianne Steel, testifying as an individual. Her prepared statement is attached to these minutes as Exhibit M.
Senator James responded to Ms. Steel's statement and said the problem was not necessarily that judges "are being bought," but that the role of a judge sitting impartially is inconsistent with the election process whereby positions are taken on issues. He referred to her comment regarding "appointing the assembly" and said he could not imagine such a situation, "...because the fundamental reason behind [the bill] is how different the judiciary is in its function than the legislature." The chairman said he believed the reason the judges around the state support the concept of S.J.R. 5 is because they recognize the inherent tension between the function of acting in an unbiased and impartial manner and the campaign function in contested elections. He pointed out to Ms. Steel the purpose of the hearing on the resolution "...is that it is an information gathering process...our decision is not to change the law, but to suggest the people be allowed again to make their own choice." Senator James reiterated the committee "was trying to come up with a suggestion for reform of the judicial selection system to be presented to the people." He concluded, "No one is taking anyone's right to vote away -- the voters themselves will vote on this."
Ms. Steel said she had developed some concerns after listening to the testimony set forth at the hearing. First, she said, "I would hate to think one of the reasons for adoption this was because the minorities and women would get a shot...." Ms. Steel added:
I am sick to death of having the people who are now in these positions being referred to as...[people] who got their shot because of this, and they wouldn't have had it any other way. I think it is very unfair to those individuals and is a poor reason for passing a law. It is very offensive to those of us who fall in the category of minorities and females.
Ms. Steel referred to the issue of campaign reform and indicated to the committee there were alternatives they might pursue. She said the amount of contributions could be limited, or a judge could receive money only through a blind trust so he or she would not know who contributed. Senator James commented he would be interested in seeing how much money was raised that way, and Ms. Steel responded, "That is exactly my point." Ms. Steel also said if it is a concern who is making contributions to a particular judicial candidate's campaign, "...perhaps those contributions should be published on a monthly or periodic basis so the public will know...."
In response to a question posed by Senator James, Ms. Steel indicated she became interested in running for a position on the new family court, right after graduation from law school. She said her campaign, which was unsuccessful, was endorsed by large labor unions, Citizens for Responsible Government, and a variety of other organizations. Senator James asked Ms. Steel if she had been endorsed by any groups organized along the lines of family issues. She answered there were approximately ten such groups formulated, and she was endorsed by one or two. Ms. Steel said many small interest groups "pop up" during a campaign; they single out a particular case or situation involving a judge and campaign against the judge on that matter. She said these groups can be "so vocal and so visible that they can do damage without a single dime being spent."
Next to testify was Robert W. Lueck, an attorney practicing in Las Vegas. Mr. Lueck stated he was familiar with the process of appointment of judges and wished to testify against S.J.R. 5 because "...the process has not worked very well." He said all appointments made since 1979 were made "...because either the individual who was appointed was very politically active...or has had a personal, close relationship with the governor...." Mr. Lueck said he has seen many instances of people "with considerably less experience" being appointed over others more qualified. He said it was his feeling that when a vacancy occurs, people are urged to apply because of their relationship with the governor. Mr. Lueck said in an election process, "...you have a free choice about the matter." He said he believed the judiciary has been hurt by the appointment system. Mr. Lueck also stated the formation of the judicial selection committee "has been somewhat of a secretive process." He said one does not hear about when the committee is going to meet or how the evaluation is done. Mr. Lueck added, "That kind of a closed system is an anathema to a democracy." He said the federal system of appointment allows for the advise and consent of the United States Senate, the nominations are publicly known and advocacy groups may testify for and against candidates. He added it was an "open process" with a "checks and balances system," unlike what exists in Nevada at the present time. Mr. Lueck said the system used now is "politically controlled and dominated." He added the judicial disciplinary commission "will never remove abusive or rude judges." Mr. Lueck stated "the judiciary in this state is a very small, tight fraternity."
Mr. Leuck echoed other testimony which set forth the idea that "...just because there were some bad campaigns...it should not result in the passage of this bill." He stated more democracy is needed, not less. Mr. Lueck also said he was not certain what "running on a record" meant with regard to a judicial election.
Senator James asked Mr. Leuck if he disagreed with Ms. Steel's comments regarding whether it was necessary for judges to be attorneys. Mr. Leuck answered he believed judges must be attorneys because of the "very complex, professional field" of law involved. He also referred to the selection of one female district court judge who had far less experience in district court matters than the other two candidates selected, but he praised her performance since that time.
Senator James thanked Mr. Leuck for his testimony and added his criticism of the existing system regarding the politicism was interesting, "...since that is the way we select most of our judges." He said that point would be taken into account when discussing amendments to S.J.R. 5. Mr. Leuck said his point was to have an "open appointment system...with hearings...and checks and balances."
The next to testify was Ed Uehling, host of a radio show in Las Vegas known as "Talk Line America." Mr. Uehling reminded the committee of Mr. Blanchard's statements regarding the State of Arizona, specifically the lack of controversy regarding the judiciary. He referred to an article appearing in the Las Vegas Review Journal on February 20, 1993, which pointed out problems in the judicial system in Maricopa County, Arizona. He said although the problems mentioned in the article do not appear to be present in Nevada, "...the judicial system here...is the weakest link of our government." Mr. Uehling said he believed the system was "racked with problems from the bottom to the top...from the way police treat people to the way decisions are made by judges." He echoed Mr. Allen's comment, "We trust each other ...we don't trust a small group."
Mr. Uehling pointed out the following fact, "As many as five senators heard the pro discussion of this law today...a maximum of two have heard any of the negative discussion of this issue...." He added he knew of the weather problems in Carson City but added, "It happens all the time." Mr. Uehling asked the chairman how many people "were paid to come from out of state to testify in support of the bill...and how many were paid to come [and speak] against this bill." Senator James answered, "None were paid at all...all these people came at their own expense." Mr. Uehling indicated he believed Mr. Blanchard was paid, possibly by the taxpayers, and Senator James reiterated he was not. The chairman added he had previously agreed to personally reimburse Mr. Blanchard for his plane ticket. He said he was the individual sponsor of the bill, and it was his desire to hear testimony from "people who would enlighten us....[Senator Blanchard] agreed to come up and I agreed to reimburse him for his ticket from my own personal funds." Senator James indicated Senator Craig Lewis of Pennsylvania agreed to pay his own expenses. He emphasized he did not agree with the suggestion "...that this committee was trying to set up any particular side at all." The chairman added he specifically used his own funds to bring Senator Blanchard to the hearing, "...because I didn't want the perception that this committee was being used to pursue that agenda."
Senator James reiterated the point the hearings were "informational gathering hearings," and there would be additional meetings on the subject. He said everyone was invited to testify and all would have equal treatment "to have their point of view recognized." The chairman said they were open-minded to suggestions as to how the bill could be improved.
Mr. Uehling referred to the chairman's earlier comment regarding how long the present hearing should last, i.e., 1:15 p.m.. He added:
If that had happened, the net effect would have been 3 hours and 15 minutes of testimony in favor of the bill and one-half hour of testimony against the bill. You have been looking at your watch several times since then."
Senator James responded, "Well, it is now 2:15 p.m., so that is a dead issue...but we really do need to sum up, so why don't you move to the substance of your testimony." Mr. Uehling said that is the type of thing "people have fear of...the mistrust we have of small groups." He also pointed out the earlier suggestion that Marshal Willick should be on the judicial selection committee, but added "...you haven't suggested Knight Allen...or any of the people against you...be on the committee." Senator James reminded Mr. Uehling of Mr. Willick's suggestion regarding a citizen's advisory group to follow up if the legislation was passed, and his own comment, "...that may be something you want to be involved in." The chairman suggested Mr. Uehling might form an opposing group and utilize the radio talk show to pursue that agenda.
Senator Shaffer stated he has had the opportunity to work with Senator James and other members of the committee and added, "The process you see here today is not indicative of what happens normally...." He said he had as much opportunity to invite opposing sides to the issue "...as anyone else on the committee." Senator James reminded Mr. Uehling of the fact the hearing was held on Saturday because of the out-of-state witnesses, and it was difficult for all members of the committee to be present. Mr. Uehling stated his fear was the "interworkings" of the judicial selection process "was not to the favor of the people...but was to the favor of the politicians...the bureaucrats...and the people who have the power to make the decisions."
Mr. Uehling suggested the special election process be used whenever a vacancy occurred in the judiciary. He also said he supported Ms. Steel's suggestion regarding non-lawyers serving as judges. Mr. Uehling concluded, "There are a number of steps you can take to expand democracy and not take this step to restrict it."
The last to testify was Edward A. Rivera, Las Vegas, Nevada. He said he wanted to address several issues. Mr. Rivera commented, "They say they want to take politics out of the judiciary...I am sitting here...this is part of the system...how can you take the politics out?" He stated he did not want to give up his right to vote for a judge, governor, assemblyman or senator. Mr. Rivera said he resented the statement that citizens "don't know what is going on," and added, "If you don't know what is going on, it is your own fault."
There being no further business to come before the committee, the chairman adjourned the meeting.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
February 20, 1993
Page 1