MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 14, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:40 p.m., on Wednesday, April 14, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Chairman James appointed a subcommittee consisting of Senator James, Senator Smith and Senator McGinness to open the hearing as a quorum was not present. 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 Lawrence E. Jacobsen*
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer*
Senator Ernest E. Adler*
GUEST LEGISLATORS PRESENT:
Senator William J. Raggio
STAFF MEMBERS PRESENT:
Bob Erickson, Research Director
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
The Honorable Cliff Young, Associate Justice, Nevada Supreme Court
The Honorable J. Charles Thompson, District Judge, Eighth Judicial District Court, Clark County, Nevada
The Honorable Michael E. Fondi, District Judge, Carson City, Nevada
Leola Armstrong, Executive Director, Common Cause of Nevada
Andrew MacKenzie, Attorney at Law
A. William Maupin, Attorney at Law, Past President, Defense Lawyers' Association of Nevada
Brian Doran, Court Administrator, City of Sparks Municipal Court
Lucille Lusk, Nevada Coalition of Conservative Citizens
Senator James announced the hearing was scheduled to take additional testimony on Senate Joint Resolution (S.J.R.) 5.
* Committee member only present for a portion of the meeting. This is noted in the body of the minutes.
SENATE JOINT RESOLUTION 5: Proposes to amend Nevada constitution to require selection of judges initially by merit and retention by election.
Senator Shaffer entered the room at 1:50 p.m. A quorum was present and Senator James called the meeting to order.
The first to testify was The Honorable Cliff Young, Associate Justice, Nevada Supreme Court. Justice Young stated he appeared in support of S.J.R. 5. He said the legislation had a "great deal of merit." Justice Young indicated there are vast amounts of money spent on campaigns and "negative campaigning seems to be the order of the day." He continued, "In most political campaigns, if you have money and you can dominate the electronic media, the chances are very good, all other things being equal, that you are going to prevail." Justice Young stated the Missouri Plan has worked well in other areas and the appointment of judges through the judicial selection commission in Nevada has worked well. He added minorities will be more equitably treated with merit selection and there will be less gender bias.
Senator Titus entered the room at 1:55 p.m.
The next to testify was The Honorable J. Charles Thompson, District Judge, Eighth Judicial District Court, Clark County, Nevada. Judge Thompson stated he has been involved in three contested elections during his 19-year tenure as a district judge. Judge Thompson stated although he is a member of the District Judges Association, he is not testifying on behalf of the association. He indicated the members of the association are divided on the issue of merit selection of judges and have not taken a public stand on the matter.
Judge Thompson said he testified on behalf of a merit selection system during legislative sessions in 1985 and 1987. He indicated the voters in Nevada defeated a resolution similar to S.J.R. 5 in 1988. The judge stated, "The average individual may be more interested in supporting it now in part because of negative campaigning which was evidenced in the past several years." He set forth three additional reasons to support passage of the resolution:
1) [Passage of] the resolution will produce a better quality judge. We have received well-qualified individuals from the judicial selection commission, who were appointed by the Governor, not because of party politics but because a bipartisan commission thought them to be well qualified. The quality of the judges is superior.
2) The money involved...not only the amount of money spent but the appearance of impropriety from where [the money] came. There is no secret campaigns cost a lot of money...they have cost me and my contributors a lot of money... Committees raise a lot of money...it comes from lawyers and business, all of whom were interested in my campaign...why? Because they knew of me, appeared in front of me...had cases involved in my court and thought I would do a good job...there is an appearance of impropriety when lawyers and litigants give large sums of money to judicial candidates.
3) The time sitting judges must spend away from the job while running for election. I would like to think a sitting judge does not do a disservice to any of the litigants in front of him, just because he is involved in a judicial campaign...but all of us who are always on the bench trying cases, have to schedule matters so we can also campaign. Time is spent in campaigning that could have been better spent trying cases.
Judge Thompson concluded, "I think the people of the state would like to see a better quality judge...and not to see them accepting money from lawyers and potential litigants."
Senator James asked Judge Thompson about the argument that adoption of the resolution will "reduce the accountability of the judiciary to the people." Judge Thompson answered:
Are you more accountable when you have a contested election ...do we get a better quality judge...are judges scrutinized more carefully? To a certain extent, that is the negative campaigning we would like to eliminate.
Judge Thompson continued, "Most of you don't know what kind of a judge I am, even though I have been involved in three serious contested campaigns." He said he has a certain sentencing philosophy and handles cases a certain way, but the public does not know that, as they do not know how he treats attorneys. Judge Thompson stated the public also does not know how many hours he works each week. He asked, "Am I more accountable because of the system we have now...I don't think so."
Judge Thompson indicated he "would like to think you begin with really qualified people with the judicial selection system," then those qualified people are retained.
Senator James referred to Judge Thompson's recent campaign for a Supreme Court justice position and asked, "Do you feel like that campaign, as rigorous as it was...and as many issues which were brought up...really got to the heart and soul of your qualifications as a judge....?" Judge Thompson answered he believes people do not vote for a judicial candidate because they are the better and more qualified individual. He said he thinks they are persuaded by the amount of money spent through "fancy advertising agencies" and vote for "reasons other than the qualifications, background and experience of the applicant."
Senator Adler entered the room at 2:05 p.m.
Senator McGinness asked the judge how the process would work under the Missouri Plan, if adopted, regarding reelection of a judge. He asked if the judge would have to raise money to run a "positive campaign" in order to be retained. Judge Thompson answered it would occur if an existing judge was opposed by groups within the state. He stressed, however, he did not believe there would be nearly as much fund-raising as there is under the present system.
Senator Titus referred to a statement provided to the committee by Leola Armstrong, Common Cause of Nevada, which is set forth as Exhibit C. She quoted from the article, "Many persons...who are elected to positions as District or Supreme Court Judges simply do not meet the high standard we citizens expect." Senator Titus asked Judge Thompson if he believed that was a true statement. Judge Thompson declined to answer the question, but indicated he believed the state would have more qualified attorneys apply for the position of judge if the appointment system were established. He said there are many such people who do not wish to subject themselves to the election process. Senator Titus continued, "We are trying to argue that the Missouri Plan would be better than what we have now...that is saying what we have now doesn't meet high standards...and you won't agree to that." Judge Thompson answered, "I didn't say that. I said I wouldn't comment on a particular judge."
Senator James quoted from an article written by Dr. Michael Bowers, a professor from the University of Nevada, Las Vegas:
In evaluating the experience of Missouri under the plan named after the state, the former Chief Justice of the Missouri Supreme Court...noted, 'We have had outstanding, able lawyers accept judicial appointments who never would have made a campaign for a party nomination.'
Judge Thompson stated that was his point in response to Senator Titus' comment regarding Leola Armstrong's statement.
Senator Adler said he did not believe the appointment process would take the politics out of judicial selection since numerous people lobby the Governor regarding a nominee for appointment. Judge Thompson agreed the Governor is "heavily lobbied" regarding the three nominees. He stated, "However, if you start off with three really qualified individuals you can't lose...it is a 'win-win' situation." Judge Thompson added he believed the commission's selections "...are truly based upon merit...individuals who would not otherwise have become judges."
Senator Shaffer asked how to dispense with the perception which the public would have regarding the fact the selection commission is appointed by the Governor who is an attorney, and includes three attorneys as well. He said this might appear as a continuation of the "good old boy syndrome" which means the Governor will "get who he wants anyway." Judge Thompson answered he believed "...the senator may be misinformed." He said the commission is composed of lay persons appointed by the Governor and attorneys on the commission are appointed by the Board of Governors of the Nevada State Bar Association. Judge Thompson stressed the Governor has no control over the appointment of the attorneys on the commission. He said the appearance of impropriety should not exist. Senator Shaffer pointed out a resolution such as S.J.R. 5 has failed to be ratified by the voters on two different occasions and said, "There is some perception they have that this isn't the right way to go." Judge Thompson said they must examine the reasons for the measure's failure. He stated:
First of all, I suggest to you that it failed because the media editorialized against it heavily. One wonders why the media would have done that. In my last race, my opponent and I spent over $1 million, most of it with the media...Why would the media be interested in encouraging contested judicial elections? They will tell you that you need to elect your judges...to get good quality judges. I am not sure that is true because I don't think we select good quality judges that way.
The next to testify was Senator William J. Raggio, cosponsor of S.J.R. 5. Senator Raggio stated he believed the concept of the legislation was very important and long overdue. He said he was aware of the fact a similar measure had been passed in earlier sessions and lost at the polls. Senator Raggio said he originally did not support the concept of merit selection of judge because he believed the people had the right to elect a judge. However, he added, his opinion has "changed dramatically over the years...for a number of reasons." Senator Raggio said S.J.R. 5 "does not do anything as radical as many suggest" because there is already a judicial selection committee in place to fill vacancies. He stated he believed it to be a small but very good step to do the same for the initial selection of judges. Senator Raggio said he did not think there was any public perception of impropriety when vacancies are filled. He continued to say there were a great number of "progressive states" in the country which have "seen the wisdom of enacting this type of procedure."
Senator Raggio stated he has witnessed many elections involving judicial candidates and feels "it is the poorest procedure we now follow." He continued:
Unlike those of us who run for the legislature...or partisan offices...judicial candidates really cannot go out and promise the people a great many things in order to get elected...but the procedure which we maintain in this state almost requires them to do so. As a result, we have candidates who are making outlandish promises...who engage in the types of campaigns that serve no useful purpose but end up demeaning the entire judicial process. I think it is extremely unfortunate...the judicial branch of government should be perceived with the highest standards ...it should be a procedure which encourages persons who are without prejudice...without bias...without the kind of issues we have to address as legislators...to come forward.
Senator Raggio stressed a judicial candidate should never promise how he will decide on certain issues. He added the most demeaning part of the process dealt with the cost of elections, i.e., the high cost of campaigning. The senator indicated judicial candidates have to raise funds for their campaigns, which funds are received from attorneys and potential litigants. He continued:
No matter how honest and full of integrity a judicial candidate is, he or she is placed in a most uncomfortable position...of having to solicit campaign funds from the very individuals who are going to appear before them.
Senator Raggio referred to the fact that the voters will, if the legislation is approved, still have the opportunity to retain or not retain a judge, and said, "This is the best of all procedures." He said a judge should not have to be concerned about reelection when he or she makes a judicial decision. Senator Raggio stated he has seen examples of judges facing the potential of a contested campaign because they made an "unpopular decision." He continued, "I want a judge who will make decisions without fear...that somehow that is going to result in some group or candidate coming forward because they don't like that decision."
Senator Raggio reiterated his strong support for S.J.R. 5 because it will "serve to bring judicial campaigns back into a form which will preserve the integrity...and the high level which should be present...from the public's perception of the judicial process." He stated a judge will still have to stand for an election on the issue of whether or not their conduct and performance is such that he or she should be retained.
Senator Shaffer asked Senator Raggio if he agreed with the earlier comment by Judge Thompson regarding the responsibility of the press concerning defeat of similar legislation in the past. Senator Raggio answered, "There were obviously some individuals who felt very strongly about this measure...the media did editorialize...there was substantial editorial comment against it." He added he would "hope for enlightened media support in the event the matter comes up on the ballot again."
Senator Titus asked Senator Raggio how he would justify "going to the voters of Nevada who have twice rejected this before...and say to them, 'We don't care what you want...we are going to do this again." She added this is not done in other types of races. Senator Raggio indicated the measure would not be back on the ballot for at least 4 years and would not be the only occasion where a matter previously voted down had reappeared on a ballot. He concluded, "If this had been a measure which had almost no support, I would agree with you...but where you have a vote with that much support, I think it is worthy of further consideration."
The next to testify was The Honorable Michael E. Fondi, District Judge, First Judicial District, Carson City, Nevada. He indicated he had testified before the committee on the bill on February 20, 1993 and reiterated his statements. Judge Fondi stated the key element to the judicial selection process and to the modified Missouri Plan being approved, was the judicial selection commission. He said prior to the existence of that commission, which was created in 1976, there was a "very politicized appointment process where the chief executive basically appointed whomever he pleased to fill a judicial position." The judge stated subsequent to that time, there was a "depolitization" of the process because candidates had to "pass before a panel" in order to reach the Governor. Judge Fondi said he believed the commission has "changed substantially" in the manner in which appointments are made.
Judge Fondi indicated he would like to respond to several comments made by Senator Titus. He stated:
I believe you asked Judge Thompson if he agreed with the statement Ms. Armstrong has submitted. My reaction to that is, 'There are some judges who have been elected who would never pass the judicial selection process.' There are some on the bench today who would never pass that process. Who they are I don't know, but I venture to say that is an accurate statement.
Through the years, the face of the State of Nevada has changed substantially...you are all well aware of the amazing population growth that has occurred in Clark County...a totally different type of population than existed 20 years ago when some of these issues were first thought about, proposed to the people and rejected. It doesn't keep us from going back to the well if we think something is worthy of consideration, because people's views change on things.
Senator Titus referred to Judge Fondi's statement that there were judges on the bench who would not be there if they had to go through a more rigorous selection process and asked, "What kind of mechanisms are in place to get rid of bad judges, other than the reelection process?" Judge Fondi indicated there was a judicial discipline commission which has the authority to remove a judge if complaints are made against him or her and they are upheld because they are severe. He said he has only seen that happen on one or two occasions in 16 years.
Senator James, cosponsor of S.J.R. 5, turned the meeting over to the vice chairman, Senator Smith, and presented his written testimony to the committee. That testimony is set forth on Exhibit D.
Following Senator James' testimony, Senator Titus referred to certain statistics "which illustrate the great power of incumbency in contested races" and asked, "What about some statistics that show how often appointed judges are or are not retained." Senator James said he did not have such statistics but believed appointed judges would be retained at a higher rate. Senator Titus agreed and added, "Aren't you giving somebody a lifetime appointment...." Senator James answered the theory was judges were going to be appointed for longer terms. He referred again to the article by Dr. Bowers which points out one of the consequences is people tend to serve in the judiciary for a longer period of time. Senator James stated this would encourage good, successful attorneys to enter the judiciary, because of the chance for a "secure position." The senator continued:
If they do something that merits their removal...and that should not be the way they voted on a political issue and it should not be the way someone portrayed a campaign ad about them...it should be whether they lacked integrity or their judicial philosophy departed from what was appropriate...or they were not administering justice fairly, then they can be removed.
Senator James stated he believed statistics would show the process of selecting judges does a good job. He said the process was rigorous and produced "good people who have gone through this rigorous process and they serve there for a good deal of time."
Senator James referred to the case of Justice Bird in California, who was removed by the election process because of a feeling she had departed from what was appropriate judicial thinking. Senator Titus said she believed that case was a "political issue of ideology" which involved the death penalty. Senator James said he believed the issue went beyond the matter of the death penalty.
Senator Titus asked, "Doesn't guaranteeing somebody a lifetime appointment fly in the face of your argument of changing times and the need to bring this back up again?" Senator James answered he was not certain of what argument she was referring to and said he did not make an argument that the judiciary should be changed a lot. He said he had argued that there should be a system which is the most effective and the least political when selecting judges. Senator James stated he had supported the concept "long before I got involved in the political process."
Senator Adler said one matter which came up repeatedly in testimony is the issue of contributions by attorneys to political campaigns carried on by judges. He suggested legislation might be formulated which mandates attorneys cannot contribute to judges' political campaigns. Senator James asked, "How do you single out a specific group and say they cannot participate in the political process the way it is designed?" He said many lawyers say they are reluctant to become involved in judges' campaigns, "but have to because it is part of the system." Senator James added, "I don't think it is fair to not change the system which creates the problem and yet say one person is denied the ability to participate...." Senator Adler pointed to all the testimony which indicated the contribution matter "was a horrendous problem." He said this would continue to be a problem even if S.J.R. 5 were approved. Senator James responded he did not believe judges made decisions because one or more litigants contributed to their campaigns. However, he added, "What it does is create the appearance of impropriety...and undermines the credibility of the judiciary in the eyes of the people." Senator James stated credibility in the judiciary is very important.
Senator Adler said he wondered whether it was advisable "...to be running exactly the same constitutional amendment up the flagpole for the third time to see if one is going to salute." He suggested perhaps the amendment should be slightly different rather than sending exactly the same resolution to the voters. Senator Adler stated this may be offensive to the voters. Senator James did not agree and said:
The ability of the people to vote on a particular issue like this one ...what is the objection...to say the people should be denied the ability to participate in this process...what is the litmus test? 10 years? Can you never bring it back up again?
Senator Adler again suggested finding out why the people did not like the measure the first time and making a change in the resolution. Senator James indicated he would listen to any suggestions for amendments the committee members might have. He said he has done a tremendous amount of research into the issue and has a set of the suggested and existing model provisions regarding judicial selection from all 50 states. Senator James stated he feels "this is the best scenario" other than perhaps having appointments reviewed by the legislature. He said he did not know how this could work in a state with biennial sessions.
Senator Titus referred to the statement, "We should allow the people an opportunity to vote on this." She indicated there have been two hearings, one in Las Vegas and one in Carson City. Senator Titus added, "I am looking out into the audience...I don't see the people here...I am not getting phone calls and letters. Where are these people who are so anxious for us to get the Missouri Plan?" She pointed out there were lawyers and judges, but no interested lay persons. Senator Titus asked, "Is there really a demand for this out there?" Senator James disagreed, saying he has received a great deal of contact regarding the issue. He pointed out "the room was not filled in Las Vegas, but a number of people came out for and against the proposal." Senator James also said very few people have come forward in opposition, despite the fact the measure has received a lot of media attention, including at least four editorials. He added, "Other than the State Industrial Insurance System (SIIS) bill, I am not sure if any single proposal has received more editorializing...." He concluded he believed there was interest on the part of the public.
Senator James asked Senator Titus if she was one of the supporters of the merit selection measure in the past and she indicated she was. He said he believed one of the reasons for its defeat at the polls was the lack of an organized group to support the resolution at the time of the election. Senator Titus stated she would like to know the cost involved "...in getting something drafted, passed through two sessions, [placing it] on the ballot and putting it back to give the people another chance." Senator James said this would be an interesting thing to know and could be done with a number of measures in the legislature.
Senator James resumed the chairmanship of the committee and invited Leola Armstrong, Executive Director, Common Cause of Nevada, to speak. She read for her prepared statement. (Exhibit C). Ms. Armstrong suggested if the resolution were to be changed in any way, it could possibly contain a "cap" on contributions so "people don't perceive this office can be purchased." Senator Adler asked Ms. Armstrong if she believed attorneys should contribute to judicial campaigns. Ms. Armstrong answered she did not believe an attorney's right to contribute should be taken away but repeated her suggestion regarding a "cap."
Senator McGinness referred to Ms. Armstrong's statement regarding "... the rights of the unrepresented and the underrepresented...," and asked if there was a possibility governors would be lobbied to have a "quota system." Ms. Armstrong answered, "Absolutely not" and indicated she was referring to minorities. Senator McGinness then referred to the statement that approximately one-half of the states have adopted some type of merit selection and asked if Nevada were included in that statistic because of the present judicial selection commission. Ms. Armstrong indicated this estimate only included those states who now initially select judges by this system.
The next to speak to the committee was Andrew MacKenzie, an attorney in Carson City, testifying as an individual and not on behalf of the judicial selection commission, of which he is a member. Mr. MacKenzie stated he feels very strongly that S.J.R. 5 should be adopted. He stated:
Once I began...to practice law, got down in the trenches and went before the courts, as a practitioner...I found that any of the judges who tended to be arrogant and oppressive...as election time neared, they would get very reasonable and much easier to deal with.
Mr. MacKenzie spoke of his experience on the judicial selection commission and indicated he wished to "dispel some of the myths that have been said today...." He referred to a comment regarding a "good old boy" type of commission. Mr. MacKenzie stated when the commission was first established, there was an indication "...it was a political process...a 'good old boy' system." He said when he first was selected to the commission, he was taken back by the fact the Chief Justice of the Supreme Court also sat on that commission. Mr. MacKenzie continued:
I must admit I was pleasantly surprised...and have been surprised in all nine sessions...although the Chief Justice of the Supreme Court is present, there has never been anybody who brought pressure on me or any of the others on the committee...to vote in any way. I have been very much impressed with the way the system works.
Mr. MacKenzie stated the "time has come for S.J.R. 5" and cited all the reasons already alluded to in this and other hearings. He said approval of the measure "would not be a cure-all and there will still be politics involved." Mr MacKenzie added there are times the selection may appear to be political...."
Mr. MacKenzie referred to the "rigorous investigation which goes on by our commission," including a 52-item questionnaire which covers general qualifications, legal background, business involvement, and personal information. He said they also review a law enforcement agency report, a financial report and physicians' reports. Mr. MacKenzie stated, "There is no elector in the State of Nevada who has all that information before him."
Mr. MacKenzie said after the commission has reviewed an application, the applicants appear before the commission and are "grilled concerning anything and everything about their personal life." He said the commission is looking for "a reasonable person with judicial temperament...and intelligence to do the job." Mr. MacKenzie referred to the nine selections he has been part of and said there were 96 applicants, of which 14 were women. He added of those 14 women, four have finished in the list of the top three applicants which is submitted to the Governor. Mr. Mackenzie stated two of the nine women are presently sitting as judges in Clark County.
Mr. MacKenzie referred to Senator Titus' question regarding the reelection rate of those judges who have been appointed by the commission. He said of the nine persons who have been appointed as judges since he has been on the commission, only two have lost elections. Mr. MacKenzie said in one case the person did not campaign, since he felt he should "stay on the bench and do his job." He said the other person who was not reelected was beaten politically.
Mr. MacKenzie reiterated his belief that merit selection works well and it would behoove the legislature as a whole to adopt S.J.R. 5. He said the one issue which does concern him, which was alluded to by Senator Adler and Senator Titus, is the fact similar measures have been defeated in the past on two occasions. Mr. MacKenzie stated the people in the state will have to be educated, since they do not always realize what they are voting for. He said he did not believe an education program on this issue has ever been done and indicated the "only way you are going to get this sold as a constitutional issue... to the people of the State of Nevada...is to educate them as to the benefits." Mr. MacKenzie stated he did not believe the people of the state understand how beneficial a merit selection system would be. He also said, "[In the last election], the media seemed to take over and really worked to defeat it."
Senator Titus responded, "It is funny that when the public votes the way we agree, they are brilliant and discerning and able to cut right through the media; when they disagree with us...they are duped by ads." Senator Titus brought up the matter of the women who were appointed and asked if they were appointed to replace men or women. Mr. MacKenzie stated one woman appointee replaced Judge Shearing who was elected to the Nevada Supreme Court, and the other was appointed to fill a position vacated by a man.
Senator James said he did not believe Mr. MacKenzie had indicated the public was "duped" by the media at the time the last measure was defeated, but rather were uninformed because of the absence of any education campaign. Mr. MacKenzie agreed and added the people of the state do not understand how a political election campaign can undermine the judicial system.
Senator James pointed out there could be a misunderstanding between the "appointment of judges" and "merit selection of judges" which occurs through a vote of the people. He also stated it was "an interesting dichotomy that those who ascend to the bench through appointment go through the rigorous selection process, "...whereas those who ascend through the election process don't go through any of that...there is no background check done." Mr. MacKenzie agreed it was a "dichotomy." He pointed out many more people "pick up applications" than ever apply for appointment as a judge. He continued to say this probably happens "after they realize what they have to go through...."
The next person to speak to the committee was A. William Maupin, Attorney at Law, Past President of Defense Trial Lawyers of Nevada. Mr. Maupin stated he was a member of the Board of Bar Governors but indicated he did not appear in that capacity, and further indicated that board did not have a formal position on the issue of merit selection. Mr. Maupin stated he wished to speak concerning the judges in Clark County who had been appointed. He said, "All of those judges are respected by members of the bar, have become distinguished jurists, all have stood for election and have survived the election process." Mr. Maupin said this was "empirical evidence upon which to draw the conclusion that this system has a virtual guarantee of quality...." He said his law firm regularly votes "they will not give campaign contributions to anybody...and every two years we routinely break that resolution." Mr. Maupin added:
Let me assure you...when a political person who has a great deal of control over your life comes to you and makes that call...and says, 'this is how much I need and this is how much I expect from you," it is the proverbial 'not an offer but a request that can't be refused." It is this aspect of the current system that I think so undermines the perception of our judicial system in the community. I am absolutely convinced the adoption of a Missouri-type plan would seriously reduce the pressure on law firms and lawyers who appear in front of judges to give campaign contributions.
Mr. Maupin agreed with Mr. MacKenzie regarding the issue of education of the public and said, "Those of us who support it must get out and raise money to try to mount an adequate campaign in its favor so the merits of judicial merit selection can be adequately brought before the voting public."
Mr. Maupin referred to a question posed by Senator Titus regarding the replacement of one minority judge or woman judge with another. Mr. Maupin stated, "Judge Becker, a woman...replaced a white male; Judge Gates, a black man, replaced a white male; Judge Loehrer, a female, replaced a female." He continued to say he believed the appointment process will make it possible for minorities and women "to gain access to these very important positions."
The next to testify was Brian Doran, Court Administrator, City of Sparks Municipal Court. He said the Sparks Municipal Court would not be affected by passage of S.J.R. 5, but related his experience in the court systems in Colorado, Vermont, Arizona and California. He said some of those states had an elective process and some used merit selection. Mr. Doran stated, "From my point of view as a court administrator, I would prefer the merit selection process." He said that process "causes stability within the court so the court can focus on matters of administration and develop procedures and policies that better serve its present community." Mr. Doran reiterated some information regarding the State of Arizona, such as was presented to the committee by a state senator from Arizona during the first hearing. He stressed an Arizona provision which states there will be a retention evaluation of judges. Mr. Doran said the evaluation will allow input from persons who work with the judge, jury members, attorneys and the general public.
Senator Titus asked if Arizona and other states which have enacted merit selection of judges have had to exempt the rural areas in order to have the measure pass on the ballot. Mr. Doran answered he was uncertain if rural counties were exempt, but said some rural counties preferred to retain an election system because they were small and did not have sufficient candidates from which to select. Senator Titus asked, "If you have fewer candidates...wouldn't it be more important to do a selection process rather than an election?" Mr. Doran agreed it may relate to political considerations.
Testifying in opposition to S.J.R. 5 was Lucille Lusk, Nevada Coalition of Conservative Citizens. Ms. Lusk stated she appeared to present the point of view of average citizens "who will have to be convinced if you wish to take this before the voters and be successful in the future." Ms. Lusk stated she sympathized with the desire of the justices to avoid the "stress, mess and cost" of elections. She said the concern of the coalition was, "Every argument that is made to justify the appointment of judges could be made to justify the appointment of every other elected official." Ms. Lusk indicated the question of whether the individuals who serve would be of better quality if they were appointed rather than elected could be applied to any elected body. She stated the major issue seems to be the appearance of impropriety because judges receive contributions from those who will appear before them. Ms. Lusk said that issue is also raised regarding other elected officials. She pointed out members of the legislature and members of the county commission receive contributions from individuals who are directly affected by their actions. Ms. Lusk referred to the premise that voters "don't really know whether a judge is good or not" also could be applied to other elected officials. She continued:
How many of the general voting populace are here watching your actions...how many of them really know whether you're doing a good job or not? How many of them really know that there are three members of this committee that are not still present...certainly there are some who spend their time listening to people and some who don't. Do the people really know that?"
Ms. Lusk next turned to the earlier comment "...that many people would serve who wouldn't run for election," and said she believed that to be true of every elected body. She continued:
There are many people who would love to serve if someone just simply said, 'Go ahead...we would like to have you,' but cannot take the time and energy...or perhaps don't have the temperament to face the people.
Ms. Lusk referred to "minority access" and said it could be argued that anybody selected because of the use of a quota selection process would be more representative of that minority than if the election process were used.
Ms. Lusk said it is a sincere opinion on the part of many persons that selection may not actually be made on merit if the bill is passed. She indicated "there may be a public perception that the committee that makes the recommendations may be beholding to the Governor." Ms. Lusk referred to the makeup of the judicial selection commission and said five of nine members would be appointed by the Governor and the other four are members of the state bar association, "...some of whom may be wishing for a future appointment." She agreed there would be a public perception which would have to be overcome.
Ms. Lusk stated a retention campaign could be just as negative and costly as a regular campaign, and could require attorneys to contribute just as equally as before. She said it would not give the public a "direct choice in who they would like to see appointed or elected."
Senator Jacobsen entered the room at 3:45 p.m.
Ms. Lusk said there were many groups who are divided on the issue of merit selection of judges, including the coalition she represents. Senator James asked if the coalition, when debating the issue, took a position against merit selection or a position that the legislature should defeat the proposal so it is not placed on the ballot. Ms. Lusk answered the coalition's position was taken specifically with regard to the issue of the Missouri Plan. She said the basis of their concern was, "...the entire debate that would exempt judges from the political process could equally be applied to any other body." Senator James asked what the coalition's view was regarding his earlier testimony that this type of selection would not work for members of the legislature and other bodies because of the "inherently different functions the branches of government perform." Ms. Lusk answered she felt people see the issue "...as those individuals who serve in public service should be accountable to the public and should be selected by the public."
Ms. Lusk stated she believed "it is the very issue of judicial philosophy that is a major issue for the public." She added a judge's judicial philosophy should be "what they run on...." Senator James said the voters would not have to give a reason in order to remove a judge and "judicial philosophy" would be a valid one.
Senator James referred to Ms. Lusk's statement that "...people who serve in public office should be accountable." He asked her to comment on people who are appointed by the Governor in the executive branch and whether they are also accountable. Ms. Lusk answered, "I think the perception of many people is that they are not accountable ...that they have disappeared behind some kind of a faceless entity." Senator James asked if heads of various governmental departments should be elected. Ms. Lusk answered she would have to study that particular issue in order to respond. She did say the superintendent of public instruction is elected in some states, although appointed in Nevada. Ms. Lusk added there is a perception in Nevada that the superintendent is "not accountable." Senator James indicated he would have less problem with those types of offices being elected offices than with the election of judges. He continued:
If you are in an administration and you are promoting a policy...you were elected on the basis of promoting some policy...that is going to be your philosophy. You push that and make it the law. That is consistent with the election process...whereas sitting there and deciding which of two litigants has the most meritorious case...there should be nothing political about that.
Senator James asked whether the attributes in a person which make him or her successful in doing what it takes to become elected, "...are the same attributes we want in our judges." He referred to Ms. Lusk's earlier comment that "...somebody who doesn't want to run for election but would [agree to] be selected, maybe doesn't deserve the bench." Senator James stated he felt the opposite was true, i.e., "Sometimes those people who could succeed in the political process would make great judges." Ms. Lusk indicated the chairman may have misinterpreted what she said and indicated she did not say "...they do not deserve to be on the bench." However, she said, "I question whether the skills it takes to get elected are necessarily the skills or attributes which make the best school board member, for example...." Ms. Lusk stated, "I believe if there was a selection process which was totally fair at all times, you probably would get a higher quality [person] for any office than you would get through election." She concluded, "Our problem is believing the selection process will always be totally fair and unbiased."
Senator James asked Ms. Lusk if the coalition was opposed to the way federal judges are selected. Ms. Lusk answered they had not discussed that issue but stated she personally believed there would be opposition.
Senator Adler asked Ms. Lusk if she believed issues such as sentencing, abortion, and the death penalty, were important to address in an election. Ms. Lusk said those issues would be important in determining a judicial philosophy, but not in the context of how a judge would rule in a particular case. Senator Adler said there were supreme court justices who were opposed to the death penalty yet ruled on death penalty cases objectively without taking into account their personal philosophy. Ms. Lusk agreed that happens but said she believed it was rare. She continued, "While judges need to be careful to try to minimize that...to say it is totally removed I think is unrealistic." Senator Adler asked Ms. Lusk if she thought judges should have to run on those types of issues in a popular campaign. Ms. Lusk responded she believed those beliefs were pertinent to a judicial philosophy, but "...not how they would rule in a specific case." She continued to say she did not think a judge's political philosophy was relevant.
There being no further business to come before the committee, the chairman adjourned the hearing at 3:55 p.m.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
April 14, 1993
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