The Committee on Constitutional Amendments was called to order at 3:30 p.m., on Thursday, April 8, 1999. Chairman Robert E. 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. Greg Brower

Mr. Don Gustavson

Ms. Sheila Leslie

Ms. Kathy Von Tobel

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Mr. Anderson asked why the bill had been referred to the Constitutional Amendments committee, rather than the Judiciary committee. Mr. Price responded he was surprised it was referred to the committee. He said there had been a discussion in the previous hearing on the bill about the constitution and the board of regents. The Assembly Committee on Education had decided to re-refer the bill.

Chairman Price turned over the gavel to Mr. Mortenson.

Assemblyman Robert E. Price, representing district 17, introduced the bill to the committee. He felt the Office of the Attorney General should be responsible counsel for all the state’s agencies, commissions, and boards. Mr. Price said the office formerly was responsible for all agencies and branches of government, but it had been decided the attorney general was not counsel for any portion of the legislative branch. His intent was to have the attorney general represent the Board of Regents. The office had represented the board until 1981 or 1983. Mr. Price referred to article 11, section 4 of the Nevada Constitution, which provided for the "establishment of the state university system, controlled by the Board of Regents." The Committee on Education had heard the bill the previous evening and much of the discussion had revolved around the constitution. The bill was subsequently referred to the committee during the floor session that day. Mr. Price suggested the committee report the bill with no recommendation so it could be further deliberated in the Senate.

Mr. Brower disagreed with Mr. Price’s suggestion. As a member of the Committee on Education, Mr. Brower had listened to testimony on the bill the previous meeting. He did not feel it was necessary to process the bill, nor was the bill properly referred to the Committee on Constitutional Amendments.

Mr. Anderson wanted to hear an opinion from the Office of the Attorney General on the issue and testimony from the Board of Regents.

Mr. Price referred to a letter from the Legislative Counsel Bureau, which indicated the possibility of a constitutional question; that letter was not submitted for the record. In addition, he also possessed an opinion from Chuck Gardner in the Attorney General’s Office. The opinion stated the Board of Regents was a political subdivision of the state. Mr. Price said the board was thought to be its own separate branch of government. The bill had been referred to the committee to examine the constitutionality of that question. Mr. Price felt the board should in fact be under the legislative branch of government, because the legislature was a governing body over the board. He said the Office of the Attorney General had not offered any position on the bill. The bill, if passed, would not go into effect until 2001. The legislature was required to budget the office appropriately. Mr. Price said the board’s counsel included a chief attorney and four assistants.

Mr. Anderson asked if the board’s counsel was a line item in the current budget. Mr. Price answered affirmatively.

Mr. Anderson asked if the position could be eliminated due to lack of funding, rather than by statute. He said by budgeting for the position, the legislature allowed it to exist. Mr. Price said that was the case.

Mr. Anderson asked if the attorney general wanted the additional responsibility. Mr. Price responded the office had not clarified their position.

Mr. Anderson wanted to know if funds would be transferred from the board’s budget into the attorney general’s budget. Mr. Price replied that would be his intent, but it would be several years before the act would take place.

Ms. Von Tobel did not think a bill was needed if the Assembly Committee on Ways and Means would decide to move the funding from the Board of Regents to the Office of the Attorney General. Mr. Price said he had not considered the move in that way but agreed with the statement. He said that type of budgetary change would not require legislation.

Ms. Von Tobel recalled agencies’ budgets often shifted during the audit process.

Vice Chairman Mortenson observed the Nevada Constitution did not provide for a fourth branch of government in a way the Board of Regents operated. Mr. Price said the discussion was controversial and arguments could be made on both sides of the issue.

Jill Derby, chairman of the Board of Regents, testified in opposition to the bill. She stated A.B. 411 was unconstitutional and unnecessary. She submitted a written copy of her testimony (Exhibit C). Ms. Derby outlined arguments against passage, including the right of the board to choose its own counsel and the effectiveness of the current system. In addition, a recent survey of other states revealed no other university system was represented by the attorney general exclusively. In King v. Board of Regents in 1948, the Nevada Supreme Court ruled the board had exclusive administrative control of the University and Community College System of Nevada (UCCSN) and the board was not subject to supervision by any other "branch, board, or department of state government." The attorney general concurred; opining the system was an independent constitutional corporation.

Tom Ray, general counsel for the UCCSN, stated the opinion to which Mr. Price referred did not come from the attorney general, but from a private lawyer. Mr. Ray acknowledged the attorney general had represented the board until 1983 when the board hired its own counsel. He said no legislation was required to make the transition, it was done in the budgeting process. Mr. Ray submitted written testimony for the record (Exhibit D). He said the board did not have to seek assistance from the attorney general because law did not require it. He stressed the board was not a fourth branch of government, but was a constitutional body. Another argument was the relationship between the Board of Regents and the legislature. Mr. Ray stated the laws of the state applied to the Board of Regents in its conduct as much as any other board, commission, or department. However, a law governing the daily operation of the UCCSN was an "unconstitutional encroachment" on the board.

Mr. Ray asked why a change in current procedure was needed. He said the general counsel served as a special deputy attorney general. If the system was sued, the State of Nevada would more than likely be named in the suit as well. He asserted the general counsel had a good working relationship with the Office of the Attorney General.

Ms. Von Tobel agreed the bill was not needed. She suggested the change could be made in the budgetary process through the Assembly Committee on Ways and Means.

Mr. Anderson said no other departments were allowed to have representation separate from the attorney general. The secretary of state had requested different representation on occasion and was repeatedly denied. If the board was not a fourth branch of government, he wondered how was it constitutionally possible for representation separate from the attorney general.

Mr. Ray responded the role of special deputy attorney general was informal. The general counsel did not have a formal relationship with the office.

Mr. Anderson said other departments within the state had similar arrangements with the attorney general. He stated the working location of those deputies was irrelevant, because those deputies were still affiliated with the office.

Mr. Ray said the distinction was the Board of Regents was created by the constitution as a separate entity to operate the UCCSN. Nevada Revised Statutes (NRS) 228.110 directed all state agencies within the executive branch were to be represented by the attorney general. Since the board did not report to the governor and was not part of the executive branch of government, that statute did not apply.

Ms. Von Tobel urged Mr. Price to utilize the budgetary process to move representation back to the Office of the Attorney General. She commented the Board of Regents would not exist if not funded by the legislature.

Vice Chairman Mortenson closed the hearing on A.B. 411 and returned the gavel to Chairman Price.

Chairman Price said the committee was not in possession of the resolution, since it had not been reported out of the Assembly Committee on Taxation. The hearing was postponed until the committee had jurisdiction over the bill.

Chairman Price directed the committee to the work session document
(Exhibit E).

David Horton, representing the Committee to Restore the Constitution, presented some amendments to the bill. A copy of the amendments was included in the work session document (Exhibit E). The first amendment was to the title of the bill. The second amendment deleted lines 28 through 42 on page 6 and lines 1 and 2 on page 7. The result would be to eliminate the requirement for a two-thirds majority vote to pass the bill. The third amendment made changes requested by Eureka County to allow county officials to sit on the Land Use Planning Council. Mr. Horton also submitted a written rebuttal to testimony made by Deputy Attorney General Wayne Howle during the April 1, 1999, hearing on A.B. 672 (Exhibit F).

Chairman Price referred to the packet submitted by the Division of State Lands (Exhibit G). The packet included information requested by the committee during the April 1, 1999, hearing on A.B. 672.

Pam Wilcox, administrator for the Division of State Lands, said the division operated under NRS 321. Ms. Wilcox felt there were several problems with the bill including the unconstitutional nature of the measure, the fiscal impact on the state with no benefits, and other problems. She stated the bill would allow the arrest of federal employees for doing their jobs and authorized counties to represent the state and manage public lands through the Land Use Planning Council. Ms. Wilcox testified there was no point to passage of the bill because the only result would be further litigation. The information submitted by Ms. Wilcox also included correspondence on the Hansen Act, HR 2032, a congressional bill to return federal public lands to the states. Ms. Wilcox said the division had spent the past 20 years working on getting the Federal Government to cede public lands to the state. The Southern Nevada Public Land Management Act was a successful means of getting land from the Federal Government. Another bill pending in Congress had been introduced to accomplish the same goal through the rest of the state. Ms. Wilcox said the Federal Government had begun to respect the State of Nevada, and the tide was finally turning in favor of the state. She thought the bill would be counterproductive in light of those developments.

Mr. Horton referred the committee to the letter he submitted (Exhibit F) as a rebuttal to remarks made by Ms. Wilcox. He reiterated earlier arguments in opposition to Ms. Wilcox’s testimony.

Chairman Price closed the hearing on A.B. 672.

Karen Kavanau, administrator of the Administrative Office of the Courts, reviewed the intent behind the court’s request for the constitutional amendment. The Supreme Court needed an additional outlet for hearing the huge amount of cases it faced each year. She said the bill had passed as S.J.R. 14 of the 69^th Session. At the same time, the legislature passed a resolution expanding the Supreme Court from five to seven justices. The court wanted an opportunity to evaluate the effectiveness of the seven justice system. A.J.R. 22 was submitted to begin the process again to provide more time for evaluation. If the measure was approved through the constitutional process, the legislature would determine the configuration of the court in 2003 and the appellate court judges would be elected in 2004 to begin hearing cases in 2005. There would be no fiscal impact on the current budget for passage of the resolution.

Chairman Price referred to the amendments included in the work session document (Exhibit E). The first amendment changed verbiage from "shall" to "must" on line 41 of page 3. The second amendment deleted lines 10 through 12 on page 4 and inserted current language from the constitution to read: "The term of office of any justice or judge so appointed expires on the first Monday of January following the next general election." Another optional amendment was included to allow the legislature more flexibility in setting up the appellate court. It amended section 3, paragraph A, line 12, by deleting the word "three." In addition, lines 14 through 16 would be changed to add the phrase "at least one judge", when referring to staggered terms. Chairman Price asked Ms. Kavanau to clarify the optional language. Ms. Kavanau responded it had been provided to address concerns about restrictive language in the original draft.

Mr. Anderson wanted to clarify the number of justices serving on the Supreme Court if the resolution were to pass. Ms. Kavanau said the legislature would determine how many judges would be on each court.

Chairman Price closed the hearing on A.J.R. 22.

Mr. Brower reported the sponsors of the bill wished to withdraw it from consideration.

Ben Graham, lobbyist for the Nevada District Attorneys Association, said his organization had concerns about rulings of the Nevada Supreme Court, primarily regarding vehicle searches. After the resolution was introduced, there had been further United States Supreme Court rulings clarifying the rights of police and offenders with regard to motor vehicle searches. The association did not feel it was necessary to pursue the legislation.

Chairman Price closed the hearing on A.J.R. 3.

The meeting was recessed at 5:00 p.m.

Chairman Price called the meeting back to order on April 13, 1999 at 11:40 a.m. behind the bar of the Assembly. There was no business before the committee. The meeting of the Assembly Committee on Constitutional Amendments was adjourned at 11:45 a.m.

RESPECTFULLY SUBMITTED:

Kelly Gregory,

Committee Secretary

APPROVED BY:

Assemblyman Bob Price, Chairman

DATE: