MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 5, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:50 a.m., on Friday, March 5, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Mike McGinness
Senator Raymond C. Shaffer
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Lawrence A. Jacobsen (Excused)
Senator Dina Titus (Excused)
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Anne Cathcart, Deputy Attorney General, State of Nevada,
Office of the Attorney General
Honorable Cliff Young, Justice, Nevada Supreme Court; Judicial
Member, State of Nevada Commission on Judicial Discipline Brooke Nielsen, Deputy Attorney General, State of Nevada
Office of the Attorney General
Llewellyn Young, Judicial Member, State of Nevada
Commission on Judiciary Discipline
Jared E. Shafer, Public Administrator, Public Guardian,
Clark County Office of the Public Administrator
Donald L. Cavallo, Public Administrator, Washoe County Office
of the Public Administrator
Andrea L. Engleman, Lobbyist, Nevada State Press Association
Thom Reilly, State of Nevada, Division of Child and Family
Services
Guy Shipler, Chairman, State of Nevada Comission on Judicial Discipline
Paula Treat, Lobbyist, Nevada Judges Association
Dennis Meyers, representing The Society of Professional
Journalists
Senator James called the meeting to order at 11:50 a.m. He announced the Senate Committee on Judiciary had scheduled a work session for this meeting, but would not hold the session. He advised the work session would be rescheduled, as the schedule had been posted without a list of the bills. There were a number of bills the committee had not acted on, which would be scheduled in groups to be considered in a work session. Some bills had been heard and would be heard again, some were awaiting amendments, some required further testimony and on some the proponents requested the bill be delayed. Therefore, Senator James wanted to be sure the public had adequate notice of what would be considered at each work session, and henceforth work session bills would be listed on the agenda. Senator James apologized to anyone present for the work session, and explained, normally, testimony would not be taken on the bills during a work session. However, if anyone had attended to help with questions on bills, Senator James thanked them for their attendance and extended his and the committee's apologies for the cancellation. He advised the work sessions would be held at the beginning of the committee meetings, unless otherwise noticed on the agenda.
Senator James opened the hearing on Assembly Bill (A.B.) 86.
ASSEMBLY BILL 86: Expands circumstances under which murderer is prohibited from succeeding to property of victim. (BDR 12-481)
Jared E. Shafer, Public Administrator, Public Guardian, Clark County Office of the Public Administrator, presented oral testimony on A.B. 86. He stated for the record he was not related to Senator Shaffer. Mr. Shafer requested the drafting of A.B. 86, in the sense of fairness of families in a murder/suicide situation. When he asked the bill be drafted they had experienced three murder/suicide cases in Clark County where the parties involved had families from prior marriages, heirship was hard to determine, and the county had to follow Nevada law which said a person may not inherit if convicted. He explained that in a murder-suicide case a conviction would never be had, and it seemed the wrong heirs, in the sense of fairness, ended up inheriting, basically tearing families apart. The way the law currently stands if a murder/suicide occurs, the husband shot the wife and then committed suicide, in that situation his department must, provide the records of the situation to the probate court and ask them to rule as to who caused the death. The probate court can then distribute the assets to the correct party. His department had experienced lawsuits filed which had dragged on in court, more attorneys were brought into the case, money was expended and time wasted, all for the purpose of distributing the remaining assets.
Donald L. Cavallo, Public Administrator and Public Guardian in Washoe County, Nevada, provided oral testimony in support of A.B. 86. He stated Washoe County had not experienced any tragic instances such as described by Mr. Shafer, however he foresaw this would happen in the future as these incidents take place across the country. He described an incident in the Oakland area in which a gentleman killed his wife in the early morning hours and later threw his 5-year old daughter off the Golden Gate Bridge, and then he jumped off the bridge. In that instance there was obviously a 6 or 7 hour time difference between the two deaths, and they were not simultaneous deaths, therefore there was a surviving joint tenant. His department did not feel family members of the murderer's side should have been able to benefit from the heinous act which had taken place. His department also hoped that introduction of A.B. 86 and passing thereof would bring any type of civil actions into the probate proceeding, thereby stopping another proceeding from being filed with the courts, making the arbitration directly under the probate proceeding.
Senator James questioned Mr. Shafer regarding the language on lines 12 and 13 of the bill which states, "The portion to which he would have otherwise been entitled to succeed goes to the other persons entitled to it under the provisions of this chapter." Senator James asked if that language created a situation as if the person never existed, due to the assets not going to him because he committed suicide, and would not go to his heirs.
Mr. Shafer affirmed that was their desire with the bill. Nevada being a community property state, if a man died first his spouse inherited, without a will. In the case under discussion, if a man shoots his wife and then himself, he would still inherit everything because he died after her. Passage of A.B. 86 would mean he could not inherit if he committed the act of murder on his wife. Another law exists which says if convicted a person cannot inherit. A.B. 86 provides if it is shown a person committed murder, that person cannot inherit. A dead person cannot be convicted. The bill was trying to address the dead person's crime. He stated it was unfair to the wife's estate for the man to inherit if he was the cause of her death. His department had a current case in which a gentleman shot his wife and then committed suicide. The man left a will, devising everything to the Theosophy Society in India. The wife left a will devising everything to her family. Under the current laws of the state of Nevada, the husband will inherit. The wife's attorney intends to file a creditor's claim against the estate, Mr. Shafer's department would deny the claim, at that point a lawsuit would be filed and eventually a negotiation would have to occur. The purpose of A.B. 86 is to preclude the killer from inheriting.
Senator James wondered about a situation regarding someone who killed his wife and was the only living person who would be entitled to inherit from the person who was killed. Under the provisions of A.B. 86 he would not be entitled to inherit.
Mr. Shafer affirmed that was correct.
Senator James continued, reading at line 12 of the bill, "The portion to which he would otherwise have been entitled to succeed goes to the other persons entitled to it under the provisions of this chapter." He wanted to be sure that would preclude his heirs from inheriting, because the language only speaks to the person.
Mr. Shafer advised a person and that person's estate were one and the same.
Senator James asked for confirmation that this was understood in the probate code.
Mr. Shafer affirmed this was the case.
Senator James confirmed there was no further testimony A.B. 86, and advised the committee would bring the bill up in a forthcoming work session. The hearing was closed in A.B. 186.
Senator James opened the hearing on Assembly Joint Resolution (A.J.R.) 21 of the Sixty-sixth Session.
ASSEMBLY JOINT RESOLUTION 21
OF THE SIXTY-SIXTH SESSION: Proposes to amend Nevada constitution to extend jurisdiction of commission on judicial discipline. (BDR C-1971)
Guy Shipler, Chairman, Commission on Judicial Discipline and Justice Cliff Young, Justice of the Nevada Supreme Court; Judicial Member, Commission on Judicial Discipline provided oral testimony. Mr. Shipler advised that also attending the hearing were Brooke Nielsen, Assistant Attorney General and attorney for the commission, and Eve King, Administrator of the Commission on Judicial Discipline.
Mr. Shipler advised the purpose of A.J.R. 21 of the Sixty-sixth Session, which passed the last session, was basically to broaden the disciplinary capabilities of the commission. Under present law, in cases where disciplinary action was needed, they were limited only to censure, removal from the bench, or to persuade a judge to retire or leave the bench. The commission had found many other things came up with regard to complaints. The complaints are generally confidential, as required by the constitution and the commission's rules. Some things brought to the commission's attention do not require censure or the commission's pursuit of the process through normal channels. The normal procedure, if an investigation was done and complaints found reasonable, a probable cause hearing would take place. If, at that hearing, it was determined they should pursue the matter further, a public hearing would be held and disciplinary action would be taken. The process is long and rather expensive and impinges on the commission's small budget. The public hearing is the only time when the commission's action did become public. A situation where that was not true, was the commission's investigations and action taken regarding the recent campaign for the Nevada Supreme Court. As everyone was aware, that was a campaign which disgusted everyone with the process in terms of the judiciary. The commission received many complaints and on that basis met with the two candidates, Judge Shearing and Judge Thompson. They told the judges it was their opinion the judges should make a public apology for both campaigns. The judges did not agree, but the commission advised them the alternative was to pursue the regular course of further investigations, a probable cause hearing and further action. That action would have been very similar to the ultimate action of the commission. Mr. Shipler thought the commission would have censured the judges, not voted to remove them from the bench. The judges did agree to make the written, formal, public apologies, which the commission issued March 3, 1993, and made public record. The feeling of the commission was that action was basically equivalent to censure because the judges were elected officials and the apologies were admission of misbehavior, which could adversly affect re-election. That was an example of the type of thing the commission was bound to do, and one of the very few things the commission can talk about publicly. A.J.R. 21 would give the commission an opportunity to impose fines or suspension for a time, in the case of a judge they felt had violated the canons. The commission did not have those options at that time.
Justice Cliff Young, member of the Supreme Court and Judicial Member of the Commission on Judicial Discipline, presented oral testimony in support of A.J.R. 21 of the Sixty-sixth Session. He advised that subsection 1 added justices of the peace or municipal judges to the current categories, supreme court justices and district judges. He advised Nevada Revised Statutes (NRS) 1.440 provided municipal judges and justices of the peace were also subject to the commission's jurisdiction. A.J.R. 21 of the Sixty-sixth Session bolstered the jurisdiction which the commission had been assuming. The second part of the resolution increased the spectrum of punishment which could be imposed. The commission felt perhaps there were cases where they would not want to remove or retire, or in which censorship would not be altogether effective, whereas a fine of some substance might be a disincentive for repetition or to deter others who might consider committing the same error. Subsection 8 of the resolution provides that justices of the peace cannot be on the commission if another justice of the peace close by was being considered. The same applied to municipal judges. Justice Young did not know of any plausible opposition to the resolution. The work of the commission would be strengthened, and Justice Young recommended it for favorable consideration.
Mr. Shipler added all members of the commission hoped the resolution would be approved without change. He felt any change would in effect kill the resolution at least for another 2 years. If the resolution passed in the 1993 session it would go on the ballot and hopefully the public would give their approval. He believed it was safe to say the resolution would greatly enhance the capability of the commission in terms of dealing with some of the issues they face.
Justice Young added there was very little publicity attached to the commission. Their proceedings were tedious by nature. He estimated approximately 65 percent of complaints received by the commission hold no merit whatsoever, some were handwritten, some were typed poorly. He was not being critical of the people. He did not mean in any way to demean the public, they did not understand, but perhaps they had been in court and lost, perceiving the judicial decision as a slight and are in effect looking for a review. For the most part the commission cannot help them. The commission tries to investigate and check complaints to see if there is substance. If the screening reveals nothing of substance, the commission would meet with the judge and possibly have an order to show cause, at which point the matter becomes public.
Senator James referred to subsection 5 of the resolution, which talked about the making of appropriate rules, and subsection 5(a) regarding confidentiality of proceedings before the commission, and stated if stopped at that point, this was how the constitution already read. He asked if that was interpreted as meaning all proceedings are in fact confidential.
Justice Young replied that was correct, until the commission felt there was probable cause. When probable cause was determined, a complaint was filed and the matter was open to the public, and no longer had confidentiality. He stated some people would like to have everything open. The commission felt that would be unfair to the judges and would impair the ability of the judges to defend themselves against ill-founded charges. He knew some members of the media would like to open up everything, but he believed as a matter of public policy that would not be good. Many of the complaints must be read to be understood, and again he was not criticizing the people who were sincere, feel aggrieved and were simply looking for some sort of relief.
Senator James agreed there was not a branch of government where people felt they were more directly impacted than the judicial branch. A judge could apply the law, which may be severely detrimental to a party in a particular case, but simply may be the the law. That person could then feel aggrieved and raise a complaint when there had been no wrongdoing whatsoever. He wanted to affirm this was the way the constitutional provision was interpreted. He felt it did not say affirmatively that the hearings are in fact confidential, and asked for Justice Young's confirmation that is what it meant. He asked if the Nevada Supreme Court in its appropriate rules say, under that provision, the hearings are all open.
Justice Young thought the confidentiality of all proceedings except censure and other disciplinary measures, would be the only open proceedings. That was the way it had been interpreted. The court felt very strongly this was the way the commission had always interpreted it.
Senator James stated the constitution mandated the commission would not be able to keep confidential a decision to censure, retire or remove a justice or a judge. He confirmed this constitutionally mandated decision itself became a matter of public record.
Justice Young confirmed that was correct.
Senator James stated in subsection 5(b), the law now stated, "The grounds of censure," and the following would be added "and other forms of discipline which may be imposed by the commission." He confirmed Justice Young had articulated those are the other things effective and yet not within the purview of removal or censure. He asked if the intention when the resolution was drafted was to make those things subject to the confidentiality which he supposed would be discretionary confidentiality. It could be opened up, but it would not be constitutionally mandated as in the clause in subsection 5(b).
Justice Young asked if Senator James referred to the amount of the sanction and so forth.
Senator James answered he referred to whatever the sanction was, which the commission had fashioned. He wondered if that should be part of the section which is constitutionally mandated to be part of the public record.
Justice Young stated his understanding was the penalty would be a matter of public knowledge.
Mr. Shipler confirmed that was what the commission felt.
Senator James stated he was sensitive to the fact this resolution had been through the Sixty-sixth legislative session and was currently in the Sixty-seventh session. He could read the resolution and say there was no constitutional mandate that the "other form of discipline" become part of the public record. Possibly at the line above where it said ". . . except a decision to censure, retire or remove a justice or judge . . ." the following language should be added: "or other form of judicial discipline as provided herein" or something similar.
Justice Young agreed this was a valid point although he did not believe there was any danger of deviation from the practice which had been followed. If the resolution were to be re-drafted, he believed Senator James' point was well taken. He hoped if anyone wanted to address this they would come with another resolution sometime in the future and take it through the process.
Senator James asked if, in interpreting this, would the intent of the legislature enter into the interpretation that it be part of the public record.
Justice Young believed it would be, although if that were to be done he would hope it would be made not only part of the minutes but also on the floor including a dialogue or colloquy indicating the intent. He advised the court gets more and more cases depending on statutory interpretation and so frequently counsel would look back in the record and see where a witness or an assemblyman said something. That really did not show a whole lot except diligence was used to get witnesses to testify and support their position. He believed there was merit in what Senator James said, and if at the time the resolution comes up for consideration on the floor, he believed it would be valuable to enter in the journal what the consensus of the Senate Committee on Judiciary had been with regard to how the resolution should be interpreted. The supreme court would find that helpful.
Paula Treat, lobbyist, Nevada Judges Association (NJA), presented oral testimony. She stated NJA had no problem with the resolution as it was. They respected Chairman James' remarks and others with respect to confidentiality and would urge the resolution's passage.
Senator James asked if Ms. Treat would agree with the interpretation as previously stated.
Ms. Treat affirmed she would agree.
Andrea "Andy" Engleman, Lobbyist, Nevada Press Association, testified regarding A.J.R. 21 of the Sixty-sixth Session. She stated her organization had some concern regarding the resolution. They supported Senator James in his comments regarding confidentiality, and the fact other forms of discipline, as the resolution was presently written, would be confidential. They had great concerns about the resolution. The public had great doubts regarding the judicial branch and did not feel anything which granted the judicial commission greater power to keep things secret and closed would stand much of a chance at the ballot box in the coming elections in any event. Her organization felt it would show a great deal of trust in the public to open up and be sure the further powers given to the commission would be as open as the powers they already had. She believed the confidentiality was such that in the last election when judicial candidates came to the press and announced they had filed complaints with the judicial commission, the press could not even get confirmation of that from the commission. Ms. Engleman stated this occurred despite the fact that under Rule 8 the commission was allowed to say whether or not a complaint had been received, if it had become knowledge from an independent source. She alleged, therefore, the press was left twisting in the wind, not knowing whether or not they were being told the truth by a candidate. The statements were printed, but could never be confirmed with the commission as to whether or not a complaint had actually been received. Her organization respectfully submitted it was better for the public both budgetarily and for confidence in the judiciary to send out a constitutional amendment which would perhaps pass, and which did what the public wanted to do rather than send it out simply because it had been through the session twice.
Dennis Meyers, representing The Society of Professional Journalists, presented oral testimony. He addressed Senator James' question, stating he had covered the drafting of that constitutional language in the 1970s. He felt when he covered that, the language was permissive, and did not require confidentiality, but merely gave that option to the Nevada Supreme Court. When the constitutional amendment creating the commission was drafted and approved, it contained language giving the Nevada Supreme Court the authority to provide for the confidentiality of commission proceedings. At that time his organization was under the impression the court would adopt relatively moderate regulations for confidentiality along the lines of other professional discipline proceedings, such as medical discipline. That is, open hearings and recorded commission votes, but possibly closed commission discussion. Instead, what his organization got was closure of everything from beginning to end. As a result there had been repeated instances of conduct by the discipline commission which raised serious questions. The idea of extending the authority of the commission without opening its proceedings to the public, as A.C.R. 21 of the Sixty-sixth Session sought to do was disturbing to them. He believed the commission needed public attention and public scrutiny. Only in that way could a little healthy sunshine prevent the abuses which had accompanied commission action in the past. If the commission's authority was to be enlarged, openness would become even more important. Mr. Meyers asserted that under normal circumstances, the public does not even know a complaint is before the commission until final action was taken. In the interim, the commission is free to act in any way it chooses, without facing public scrutiny. Mr. Meyers advised in 1990 the commission intervened in a judgeship race in Washoe County by ordering then District Attorney Mills Lane to take his campaign commercials, which featured endorsements from Judges Jerry Whitehead and Charles McGee, off the air. In Mr. Meyers' organization's subsequent investigation of that action, they learned from commission sources that the commission (1) acted without receiving a sworn complaint, a violation of its own regulations; (2) failed to notify the targets of its investigation, a violation of its own regulations; (3) held no hearings on the complaint, a violation of its own regulations; (4) acted without jurisdiction over Lane, who was not then a judge, and whose conduct therefore was outside the powers of the commission; (5) issued the equivalent of an injunction even though the commission has no injunctive authority; (6) acted not in a regular meeting, but in a telephone call which precluded the kind of thorough discussion which would have prevented some of those errors; and (7) doctored the language of the judicial canons in order to justify its action. Mr. Meyers further advised that sources inside the commission at the time said the commissioners were forced to act in violation of their own rules in order to act before the election. But, according to Mr. Meyers, after the election was over, and under threats of legal action from the targets of the investigation, the commission was forced to retract its order and to apologize. He further asserted that as it happened, the commission's haste to affect the election backfired. The momentum which had been building for Lane's opponent was stopped cold because of the commission's action, because it kept Lane as the underdog victim of a runaway secretive state regulatory agency. Mr. Meyers stated perhaps it could be said that the situation policed itself, but that was probably little comfort to Lane's opponent who deserved to have her campaign proceed uninterrupted by those kind of closed and unregulated processes. Mr. Meyers believed if the commission were operating more under normal, open-meeting requirements, public attention and scrutiny would have prevented the rush to judgment which was involved in that incident. Mr. Meyers asserted that after that fiasco it was widely assumed the commission would decline to accept complaints involving campaign conduct by judges, not just because of questionable jurisdiction, but because such complaints wander into constitutionally protected expression. His organization learned on March 4, 1993 that the commission had accepted and handled another campaign complaint. During the campaign when his organization heard from a judge he had filed a complaint, commission sources indicated to the organization that the complaint would be refused because it was not a sworn complaint. Yet his organization had learned the complaint was accepted and acted upon without the public ever knowing what was happening, and in that case there was clearly widespread public interest. Mr. Meyers stated as journalists, members of his organization get protective when an organization started abridging expression, in a campaign or otherwise. Mr. Meyers felt if the Commission on Judicial Discipline was going to act as a campaign practices agency, it needed to be open, and if it was not going to do so, it still needed to be open. The supreme court's willingness to fuel such secrecy fuels the conduct which had been seen too often in the past. Mr. Meyers believed it was essential that the commission's procedures be reformed before its authority is enlarged, as A.J.R. 21 of the Sixty-sixth Session sought to do.
Senator James stated he had the feeling from Mr. Meyers' testimony that Mr. Meyers would like to see a constitutional mandate that more of the proceedings than just the decisions be public. He asked Mr. Meyers if that was correct and asserted that would be a broader amendment than A.J.R. 21 of the Sixty-sixth Session. Senator James stated the things in the Lane campaign and the way in which the complaint was filed and accepted, and whether there was a complaint, were proceedings before the commission which did not amount to censure, retirement, removal or other forms of discipline. He assumed Mr. Meyers would make public the forms of discipline, which happened in that case, which was to take the advertisements off the air and whatever else was ordered. He assumed Mr. Meyers was suggesting the constitution should be revised more dramatically to say some of the authority of the commission to make those proceedings confidential should be taken away. He asked Mr. Meyers to confirm if that was what he was saying.
Mr. Meyers replied in the terms Senator James had expressed, he did not believe the authority existed for the commission to regulate the conduct of judges in political campaigns. Mr. Meyers stated the language was pretty clear and he did not see the authority there. Therefore he did not believe the constitution needed to be changed. He believed the commission needed to show the restraint of not getting involved in campaign complaints at all. Regarding Senator James' reference to the 1990 McGee/Whitehead/Lane race, Mr. Meyers stated essentially what the commission's proceedings did was suspend due process. He asserted there was no complaint before the commission, the targets of the investigation were not notified, they were not given a hearing, and the commission acted without jurisdiction. He further asserted due process was not a bureaucratic curlycue which, if set aside, would not be missed.
Senator James stated due process was also embodied in other parts of the constitution, and therefore the people who had their due process rights violated would be able to pursue that. A.J.R. 21 of the Sixty-sixth Session did not authorize any violation of due process, but allows the proceedings to be confidential. Senator James supposed if that was a violation of due process in a given instance, to make it confidential there would be a sort of competition of the two constitutional provisions. He would think the constitution would have to be interpreted that those two are consistent with one another to reach a judicial resolution.
Mr. Meyers stated the commission was involved not only in judicial conduct, which he believed they were not involved in by any meaning in the constitution, but also in campaign conduct and the resolution thereof, because of the way the commission raced to beat the election. He asserted the resolution of that came when the voters went to the polls. What he was saying was the remedy to prevent those kinds of things happening was openness.
Senator James asked Mr. Meyers to confirm that all he was really asking for would be that this new form of discipline, whatever the legislature was empowering them to adopt, would be public, suggesting the proceedings be opened further than that as far as A.J.R. 21 of the Sixty-sixth Session was concerned.
Mr. Meyers stated he wanted A.J.R. 21 of the Sixty-sixth Session killed and reform of the commission to come before its powers were enlarged.
Senator James asked if Mr. Meyers referred to a regulatory form in the way the commission adopted regulations, or another constitutional provision.
Mr. Meyers replied that would be a policy decision. It seemed clear to him that the commission was not going to be open in the foreseeable future on the basis of present constitutional language. He would prefer if the legislature moved ahead with reforming the commission toward openness with a new resolution, and believed Ms. Engleman agreed with this.
Ms. Engleman stated she would rather the commission hearings be open. One of her organization's concerns with A.J.R. 21 of the Sixty-sixth Session was it would encompass justices of the peace, which had not previously been covered by the judicial commission. Justices of the peace do not necessarily have to be attorneys, but the court had ruled or said in its rules that anyone who ran for a judicial seat who did not fall under state ethics laws, and did not fall under state campaign reform laws only fell under the laws of the court. She compared it to a totally separate government. Her organization had problems with a lot of people who were not attorneys and had not been under the court suddenly running for justice of the peace and all of a sudden they are given a whole separate set of ethics laws and campaign laws to follow. She stated there was a lot of confusion as to which laws or rules a candidate in the judiciary was supposed to follow. Ms. Engleman stated in the 1991 legislative session a great ethics law was passed. It provided ethics for candidates, executives and the judiciary. The law did not single out one over the other. Ms. Engleman stated the court decided that law should not apply to them and drafted their own ethics rules, which did not have as much bite to them as the law which had been passed. Ms. Engleman asserted there was not a lot of trust in the judicial branch, and to put forth a constitutional amendment which gives them greater power and allows secrecy at the same time, she believed was a mistake.
Mr. Meyers added A.J.R. 21 of the Sixty-sixth Session would take the powers of the commission into more elective races such as justice of the peace, and give the commission more opportunity to involve themselves in campaigns. Secondly, Mr. Meyers stated, referring to legislators being disciplined as members of the legislative body, he covered the disciplinary proceedings of an assemblywoman in the 1979 session he believed, and the proceedings were entirely open. He did not understand what the big deal was, and why judges should not face the same kind of confidentiality as doctors, or legislators, or anyone else.
Senator Shaffer stated he had problems with Ms. Engleman's statement that there was no trust in the judicial branch. He asked Ms. Engleman on what basis she was making statements such as that. He asked if that was Ms. Engleman's opinion, was she talking for the general public, or for whom was she speaking.
Ms. Engleman apologized if her statement upset Senator Shaffer. She stated those statements came from the elections and some polling her organization did.
Senator James stated he was trying to be careful to ask Justice Young and Mr. Shipler, and particularly Justice Young how the provision was interpreted. Senator James believed there was some ambiguity in the way the resolution was drafted. He read from the resolution, "The supreme court shall make appropriate rules for: the confidentiality of all proceedings before the commission . . ." Senator James stated if he were to write this and wanted the commission to be completely confidential, he would say "all proceedings before the commission are confidential, except " whatever." He stated the present language allowed the other interpretation, and allowed the supreme court to make rules which make the commission completely confidential. If they say they are completely confidential, they are and have not done anything wrong under the resolution. He further stated by the same token, as he asked Justice Young, they could probably say they are not confidential, that a rule was being made regarding confidentiality and the rule was they are not confidential. He sees that as loose and open, allowing it either way. He thought perhaps the people of the state of Nevada needed to decide that issue, whether the people wanted to put in the constitution that these proceedings are entirely confidential or that the court has the power to decide how confidential they are. In Senator James' reading of the resolution, this is a legitimate question.
Senator James believed the next issue was that the people of the state of Nevada had adopted what was currently in the constitution, and that was what Mr. Meyers was opposed to and what he wished to stop. Mr. Meyers perceived too much was confidential and did not want to add any powers to the commission to allow further confidentiality to go forward. However, the testimony of Justice Young and Mr. Shipler indicated no intention in the provision of A.J.R. 21 of the Sixty-sixth Session to make that confidential. Rather, Senator James perceived the intent as being the same kind of decision as other forms of judicial discipline. It would be a public decision also, and must be under the resolution. Justice Young had suggested this be part of the record of the senate in presenting the resolution on the floor. Senator James asked Dennis Neilander, Senior Research Analyst, to determine how that would manifest itself in judicial interpretation. Senator James referred to section 5(b) of A.J.R. 21 of the Sixty-sixth Session and read: "The grounds of censure and other forms of discipline which may be imposed by the commission." Senator James advised that, literally read, that included retirement, removal or anything else of a disciplinary nature. Therefore, the two clauses could be read together, that what was included in one was included in the other. He believed there was room for interpretation in a manner which required those proceedings to be public. Having provided that interpretation, Senator James asked Mr. Meyers if he would still have a problem with the resolution going forward to allow the people to vote on it, to decide whether to give the commission the additional flexibility which they had articulated they need and shown in two sessions of the legislature that they need. And further, to come back and address the separate issue in a separate initiative.
Mr. Meyers advised his problem with the resolution was the reforms were not in place before the commissions' powers were expanded. He had no problem with Justice Young's testimony, and advised there were very few people in Nevada public life for whom he had more respect than Justice Young. They had experienced a very long and good relationship, and served on
a board of directors together. Regarding Justice Young's intentions expressed in his testimony as part of the legislative record, Mr. Meyers stated he had heard what he thought were similar intentions expressed with regard to the original language, and yet the end result was absolute confidentiality. Additionally, he felt the present membership of the court and its intentions did not guarantee anything in the future. Mr. Meyers' desire was openness in the commission, before the situation was made worse and the commission was given more latitude to act.
Ms. Engleman stated she recognized everyone's arguments on all sides. She realized how difficult the committee's role was. She wished to make it clear that neither Mr. Meyers nor she were speaking about personalities, and compared this to reorganization. The person holding office was not the issue, but rather, who might be governor some day. Her wish was not to reflect on Justice Young or Mr. Shipler. She stated there was already a rule which would have allowed openness during the most recent election, and the commission chose not to follow that rule. She further stated one of the things both she and Mr. Meyers had requested of both Judge Thompson and Judge Shearing was that if there was a hearing before the judicial commission would they request the hearing to be open so the public could see the charges which were being brought forth. Both judges agreed by letter, however Ms. Engleman and Mr. Meyers were informed that did not matter, the hearing would be closed regardless, even though the people being discussed wanted it open for the benefit of the public. She stated those were their concerns, that even where the participants wished to have an open hearing, the commission evidently does not have that kind of flexibility.
Senator James agreed it was not a matter of personality. He believed Ms. Engleman and Mr. Meyers had raised a legitimate issue, that of how confidential the people of the state of Nevada wanted these proceedings to be, when they adopted this in the first instance. The language, as he indicated previously, was ambiguous, and he consequently believed it was appropriate that the people be allowed to vote on the issue. Senator James did not know whether that was the time when it should be done. This was his cause for concern, that possibly that issue should go through and undergo the same kind of scrutiny A.J.R. 21 of the Sixty-sixth Session has undergone. As a new member of the legislature, Senator James was loathe to cavalierly throw aside something which had made it thus far. He further advised he had not reached a definite decision, but would discuss the resolution with the members of the committee.
Ms. Engleman stated she understood the difficult position of the committee and thanked them for hearing her testimony.
Brook Nielsen, Assistant Attorney General, provided oral testimony. She stated a couple of statements had been made which she took issue with as not being completely accurate, which she wished to bring to the committee's attention. She referred to Mr. Meyers' statement that all proceedings of the commission were confidential. Ms. Nielsen stated that was not correct. As Justice Young and Mr. Shipler pointed out, once a finding of probable cause was made, the proceeding became open, as was true in the proceedings to discipline doctors. Ms. Nielsen advised a public hearing was held, and therefore there was openness in the proceedings as currently run by the commission. She advised this was done in accordance with the Supreme Court Rules. The supreme court had interpreted the constitution in a way to provide for openness when a finding of probable cause had been made and the commission was going to seek to impose discipline. She agreed with Senator James' statement that there was ambiguity in the way the constitutional provision existed, and that there was room for either end of the spectrum. However, she stated in the court rules and in particular Rule 16 of the Rules of Procedure of the commission and the rules following that which the Nevada Supreme Court wrote, provide for open hearings. The proceeding are not, therefore, totally confidential, and the public does have the right to attend those hearings. She also referred to Ms. Engleman's statement that the commission did not follow their rule when the press made inquiries about complaints. Ms. Nielsen advised Rule 8 provided simply that the commission may respond if they choose, but are not required to acknowledge. Therefore the commission did not violate that rule by refusing to acknowledge. Ms. Nielsen stated that as the committee had heard from both the proponents and the opposition, there had been some criticism over prior public comments made. She advised this was entirely within the commission's discretion as to whether they wish to comment, and if they choose not to they are simply following their rules.
Senator James asked if, when the determination of probable cause was made, were there more extensive hearings or if really what was left was the decision of what the punishment would be.
Ms. Nielsen advised the decision on probable cause began the full-blown public hearing process. A substantive due process hearing was provided, a complaint filed, witnesses called, and both sides had subpoena power. The hearing would be just like a trial and takes place publicly.
Senator James asked for and received confirmation that Rule 16 sets forth that procedure.
Ms. Nielsen confirmed the procedure was set forth in Rule 16 and the rules which followed, which were all contained in the Supreme Court Rules.
Senator James asked if that procedure was followed in the Mills Lane case.
Ms. Nielsen replied in that case the procedure was not followed, however it had been used in a number of different cases and the commission operated pursuant to those rules. Therefore, when a complaint was received, if the commission found probable cause and wanted to take action they held a public hearing before discipline was imposed.
Senator James asked how the suspension of the rules was decided on if the commission proceeded with following those rules.
Ms. Nielsen explained her understanding in the Lane case a public statement was made about the way the campaign was being conducted. The commission was not imposing discipline against either party, but expressing some displeasure with what was happening. She stated Judge Lane and Judge Whitehead did not appreciate that and at least Judge Lane filed an action pointing out no complaint had been received by the commission, yet the commission had made a public statement. The commission was being criticized by Judge Lane for not adhering to confidentiality, but the commission did not impose discipline on either Judge Lane or Judge Whitehead in a formal proceeding. She stated if she was wrong Mr. Shipler, who was there at the time, could correct her characterization of what occurred.
Senator James confirmed there were no other parties wishing to testify on A.J.R. 21 of the Sixty-sixth Session, and advised the resolution would be taken up at a later work session.
Their being no further business, Senator James adjourned the meeting at 12:50 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
March 5, 1993
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