The Committee on Constitutional Amendments was called to order at 4:00 p.m., on Thursday, March 25, 1999. Chairman Bob Price presided in Room 4100 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bob Price, Chairman

Mr. Harry Mortenson, Vice Chairman

Mr. Bernie Anderson

Mr. Don Gustavson

Ms. Sheila Leslie

Ms. Kathy Von Tobel

COMMITTEE MEMBERS ABSENT:

Mr. Greg Brower

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Robert Rose, Chief Justice of the Nevada State Supreme Court, spoke in favor of the resolution. He stated the average number of cases per judge at the appellate court level was 100. From 1968 to 1998, the number of district judges increased by 178 percent, but there was no increase in Supreme Court Justices. In the same amount of time, the number of cases being heard at the Supreme Court went from 300 to just under 2000. Some of those statistics could be found in Exhibit C. In 1992, the Supreme Court asked the legislature to make a constitutional amendment calling for the establishment of an intermediate appellate court. The measure failed. In 1995 and in 1997 the Supreme Court asked the legislature to increase the number of justices on the court from five to seven, which they did. Even with the additional two judges, the number of cases heard by each judge was the highest in the nation. The Supreme Court was thankful for the two additional judges, but felt they were a temporary solution to a permanent problem. When most states reached the 1000 case mark, they made an intermediate appellate court. The Supreme Court felt the long-term solution was the creation of an intermediate appellate court.

Two years ago the Supreme Court asked the legislature to begin the process to amend the constitution to create an intermediate appellate court, which they did. The court asked the legislature to defer that bill and start the process anew for two reasons. The first reason was they would like to see what the seven-justice court could do. Passing the resolution now gave the court 2 years to operate and evaluate themselves as a seven-justice court before submitting the measure to the voters. The second reason was they had three new members on their court and they would like to allow those members to see how the court operated before implementing a constitutional amendment.

Chief Justice Rose also proposed two changes to the measure (Exhibit D). First, section 15 indicated the salaries of the judges in the appellate division and in district court could not be diminished, but it took out the words "cannot be increased." He felt it would be difficult to pass the bill with that constitutional change. He asked that the words "cannot be increased" be put back into the bill. Second, in section 20, the appointment was for the unexpired term of judges. Instead, it should read "until the next general election." The language of A.J.R. 13, which proposed to amend the Nevada Constitution to revise the term of office of justices of the Supreme Court or judges of district court who were appointed to fill vacancies, should be grafted into that section also.

Mr. Anderson asked Chief Justice Rose if the reason he wanted to add A.J.R. 13 to A.J.R. 22 was to stop two issues from facing the voters simultaneously. He went on to say he was concerned that it could be difficult to pass A.J.R. 22 with A.J.R. 13 attached to it because the issues were different.

Chief Justice Rose agreed with Mr. Anderson but still thought that A.J.R. 13 should be attached to A.J.R. 22. Mr. Anderson said he thought that if both A.J.R. 13 and A.J.R. 22 made it through the Assembly, the two could be put together in the Senate.

Chief Justice Rose then introduced William Maupin, an Associate Justice for the Nevada Supreme Court. He added he was appointed 1 year and 4 months before an election. He was able to become proficient at his job before facing the voters. He also said with the additional judges, the court, for the first time in 10 years, was able to generate as many dispositions as there were cases filed. That still left the court with a number of backlogged cases in addition to 2000 new incoming cases. Without any case growth, the court would have to hear 200 more cases a year for the next 7 years in order to clear out the back cases. The reality was the influx of cases was going to increase as population increased. An intermediate appellate court was the best solution.

Ms. Leslie asked Chief Justice Rose if there was any other element adding to caseload growth besides population. Chief Justice Rose answered there wasn’t, but the court administrators would say population growth tracked with court case increases.

Mr. Anderson said when the legislature created the additional two judges, they did it with the intention they would be a part of the appellate system if it was created. He wanted to know if A.J.R. 22 called for the retention of the seven-member court, and the creation a separate appellate court. Chief Justice Rose said he wanted to visit the issue in 2 years. At that point he would ask the positions be eliminated by attrition or that they keep the seven-member court.

Mr. Anderson pointed out the measure could not be amended once it passed the Assembly and the Senate. He asked if Chief Justice Rose was suggesting the legislature go back and take care of terms for judges with a separate piece of legislation. Chief Justice Rose said yes, but it would not have to be done with a constitutional amendment.

The meeting was recessed until Monday, March 29, 1999.

All members were present on March 29, 1999. Chairman Price reconvened the committee at 4:00 p.m. in room 1214 of the Legislative Building.

Karen Kavanau, Nevada State Court Administrator, discussed the amendments proposed by Chief Justice Rose and the Nevada Supreme Court for A.J.R. 22 (Exhibit D). The handout included a third amendment that was not discussed before, and the Supreme Court considered optional. The court was concerned because of the word "three" in section 3A, page 1, lines 14 to 16, the legislature might feel as though the court was telling them how many judges to appoint. The court thought that misunderstanding could be cleared up by replacing the word "three" with the words "at least" before the word "judges" in section 3A, page 1 lines 14 to 16.

Ms. Von Tobel asked from where the language in section 15, page 3, line 41, dealing with the salaries of judges, came. Ms. Kavanau said the language was in S.J.R. 14 from the 69^th Session.

Ms. Von Tobel said she appreciated the amendment, but added she felt "snookered" that language got passed in the 1997 session. Ms. Kavanau reassured the committee the court was sensitive to the original wording, and they wanted the amendment added.

Robert Erickson, the committee policy analyst, told the committee in 1992 or 1994 there was a question on the ballot that came through the salary commission to allow salaries of justices on the Supreme Court and in district court to be increased during their time of office. The reason for midterm increases was so all the justices in their respective courts would receive the same salary. The voters rejected the measure with 58,000 no votes and only 3,900 yes votes.

Mr. Anderson pointed out a numbering problem that existed with the proposed amendment to section 15, page 4, lines 10 to 12. The amendment started with the number 2, but there was an existing number 2 that started on line 13. He asked if the courts wanted the existing lines 13 to 14 to stay in bill, or if they wanted them omitted.

Ms. Kanvanau said only the existing lines 10 to 12 should be omitted, and should be replaced with the original language, but agreed that there was a numbering problem that needed to be resolved.

Karen Kavanau, secretary to the Commission on Judicial Selection, read from a prepared statement (Exhibit E). The statement concluded the timing of the selection process could have a negative impact. It seemed "that many qualified applicants do not forgo the judicial selection process because they understand what has to be accomplished…the Commission believes that a reduction in the number of applicants diminishes the intent of the judicial selection process." The commission favored changing Article 6, section 20, paragraph 2 of the Nevada State Constitution to guarantee appointed judges served at least 12 months before going through an election and cited other states who had the same or similar process.

Ms. Von Tobel asked if there had been difficulty getting applicants to fill and candidates to run for those positions. Ms. Kavanau stated the number of applicants varied depending on the timing of the selection process.

Linda Dill, from the Commission on Judicial Selection, said the first selection process in which she had participated was in February 1998 when Judge Mills Lane resigned. She received many calls questioning the process because the process took 3 months, and they would have to run in November. Four to five potential applicants decided not to apply. The commission saw an increase in the number of applicants for the last four vacancies due to the fact they would not have to run until November of 2000. The closer the vacancy occurred to an election, the fewer the applicants.

ASSEMBLYMAN ANDERSON MADE A MOTION TO DO PASS.

Mr. Anderson stated after observing the process he found people were reluctant to enter into an appointed position before an election. It was a disservice to the time period for which they served because the electorate must make a choice. It was important to have a person who took the job seriously, even if it was only for a small amount of time. It was crucial the person be willing to take on the responsibility without worrying about political considerations. The political considerations would always be there, but when the person knew they would be up for election within a year’s time it was a disservice to the entire system.

MR. BROWER SECONDED THE MOTION.

Mr. Brower agreed with the comments of Mr. Anderson and stated he saw two problems with the current system. One problem occurred when the vacancy was filled so close to an election, the judge did not have time to be properly evaluated by the electorate. If the committee assumed the voters were going to continue to elect judges, it was not effective if the voters could not effectively evaluate a judge’s performance. The second problem came when a judge was required to start an election campaign upon taking the bench. It was not good public policy. He saw no downside to the bill and felt only good could come from it.

Ms. Von Tobel said the short time might be a plus for some judges in Clark County.

THE MOTION CARRIED UNANIMOUSLY.

Mr. Price asked the committee if they wanted to take action on A.J.R. 22 or if they wanted to take it to a work session.

Mr. Brower indicated he did not want to take action on it. He wanted to talk to the judges first.

Ms. Von Tobel agreed.

Mr. Price asked if there was anybody present who wished to testify on A.J.R. 18. There was not.

Mr. Mortenson gave a report of the subcommittee that heard A.J.R. 3. He said in his opinion the proposed amendments did not significantly change anything. The subcommittee decided it would be best to bring it back to the full committee for a vote.

Mr. Brower said it was his understanding the original measure was very broad. It would have required the Nevada Supreme Court to follow the rulings of the United States Supreme Court on virtually every topic. The amendment proposed by the sponsor would adopt the California approach. That would change the Nevada Constitution to require the Nevada Supreme Court to follow the United States Supreme Court in the areas of law dealing only with criminal procedure. It narrowed the scope of the measure. The proposed amendment would address the search and seizure issue on which Richard Gammick, Washoe County District Attorney, gave testimony on February 4, 1999. It also required the Nevada Supreme Court to follow the United States Supreme Court regarding the Eighth Amendment, cruel and unusual punishment, and the Fifth Amendment, the right of a person to not incriminate themselves. It was fair to say the amendment required the Nevada Supreme Court to follow the United States Supreme Court in regard to criminal procedures. That included everything from arrest through sentencing.

Ms. Leslie asked the subcommittee what the opposition was to the California approach.

Mr. Brower said the opposition felt as a sovereign state we should not change the Nevada Constitution to bind ourselves to follow the United States Supreme Court decisions because of one erroneous decision by the Nevada Supreme Court that could be overturned in the future. Those in opposition to the idea believed if it were not for the Nevada Supreme Court’s decision, or lack thereof, on one Fourth Amendment work-related issue the legislature would not be faced with the measure today. The other side believed that one court case, until overturned, was making it difficult for law enforcement officers to conduct automobile searches. In order to remedy that situation, a constitutional amendment was necessary.

Lucille Lusk, Founder, Nevada Concerned Citizens, stated Mr. Brower fairly represented the ideas of the opposition to the measure with one exception. They felt the issue could be dealt with statutorily, and it did not require a constitutional amendment. They did not denigrate the concern of the proponent but did not feel an amendment was necessary. She went on to say an amendment would not solve the problem immediately, whereas a statute could. She said Gemma Greene, Washoe County Deputy District Attorney, indicated the reason the issue came to be was because Nevada had a 1-hour detainment statute. The courts ruled a car could not be searched without a warrant because the hour allowed time to obtain one. She felt the problem was with the 1-hour detainment statute and urged the committee to look closely at that issue.

Mr. Brower agreed with Ms. Lusk. He added he talked to Mr. Gammick and Ms. Greene about a statutory remedy to the problem. They indicated a statute would not help the situation. He said their arguments did not convince him and added it was worth investigating, because the goal could be reached more easily. He said he would take it upon himself to talk to Mr. Gammick to see if that would be the way to go.

Mr. Mortenson said it seemed it was Nevada Statute that deviated from United States Supreme Court ruling. If that caused the deviation then that should be method of remedy, instead of changing the constitution.

Mr. Brower suggested holding off on taking action on A.J.R. 3 because Ms. Greene was not present at the meeting. If Mr. Gammick and Ms. Greene were insistent on not pursuing statutory change, then it could come back to committee for a vote.

Robert Erickson, the committee policy analyst, told the committee there would be four items for consideration on the next meeting's agenda. He also said any item previously brought before the committee must be acted upon by the following meeting.

Mr. Price noted committee meetings were going to be starting at 3:30 p.m. He knew that might be a problem for members in other committees, but felt it was necessary.

The meeting of the Committee on Constitutional Amendments was adjourned at 4:50 p.m.