The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Tuesday, March 30, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Michael R. Griffin, District Judge, Department 1, First Judicial District Court, said S.B. 514 would give him as a judge the option of designating his spouse as a surviving spouse who would receive a portion of his retirement if that spouse were to survive him. He pointed out that every state retirement plan has this option except judiciary. Judge Griffin said the Nevada District Judges Association has not taken a position on the provisions set forth in section 3, subsections 1 through 4, and section 9, subsections 1 through 4 of S.B. 514, and said the committee may want to delete that portion of the bill. He summarized he would appreciate the opportunity to designate spouses as beneficiaries, but takes no position on sections 3 and 9 of the bill as that is something the Nevada District Judges Association did not request.

Norm Robison, District Judge-retired, said this bill would allow the judges to take a lesser amount of retirement for life knowing their spouses will receive the same amount if the judges die. He said that was not available when he retired and furthered all the survivors get now is $2,000 as survivor benefits after they reach age 60 and have not remarried. He echoed Judge Griffin’s intent to delete sections 3 and 9 of S.B. 514.

Senator Wiener asked if the benefits are relinquished after a beneficiary remarries. Judge Griffin said this is a widow’s benefit in which upon remarriage the rights to the funds are terminated. Judge Robison said that problem does not exist with the Public Employees Retirement System (PERS). Judge Robison added a lot of the judges today are younger than the judges were when this statute was originally passed and pointed out there is no fiscal impact.

Brent T. Adams, Presiding Judge, Department 6, Second Judicial District, said S.B. 514 creates a judicial retirement identical to PERS and mirrors provisions in virtually every other state concerning judicial retirement. He added this bill would not have a fiscal impact on the State of Nevada. He noted with regard to S.B. 401, which will be heard later at this hearing, that he, Judge Griffin and Judge Robison had the opportunity recently to see firsthand the problems in the Family Court of the Eighth Judicial District.

Judge Adams said the problems in the Family Court of the Eighth Judicial District have been the subject of much discussion in the press and he said he thinks that court desperately needs additional judicial officers.

Judge Robison commented there are three bills that affect the presently pending statutes and were submitted by the Nevada District Judges Association independently so that one would not fail with another or vice versa. He continued none of the three bills conflict in nature with S.B. 514. He said the bills are S.B. 245, A.B. 622 and S.B. 514.

Chairman James asked Judge Robison about the status of the other bills. Judge Griffin said one of the bills increases the surviving spouse’s pension at the age of 61 and another bill affects time for vesting of retirement.

Michael P. Gibbons, District Judge, Department 2, Ninth Judicial District, said the Nevada District Judges Association felt very strongly about S.B. 514 because of the inequity presently in the law. He said this bill should not be controversial, particularly if sections 3 and 9 are deleted as mentioned earlier. Judge Gibbons continued S.B. 514 affects the Nevada Supreme Court and the Nevada District Courts equally. He echoed this bill has no fiscal impact at all.

Chairman James said S.B. 514 would be taken up at a Senate Committee on Judiciary work session shortly to consider the suggested changes. There being no further testimony, Chairman James closed the hearing on S.B. 514 and opened the hearing on S.B. 401.

Cynthia (Dianne) Steel, District Judge, Department G, Family Division, Eighth Judicial District, requested five new judges for the southern division as the need is great for getting families through resolution and the time is short. Judge Steel continued that sometimes only 15 minutes are available in which to make a decision. She said family court has been working very hard to accomplish the great demand put upon it by the community, and a study committee was formed which several of the Senate Committee on Judiciary members sat on and are aware of the outcome and the need to have more judges. Judge Steel said if the Family Court in the Eighth Judicial District had more judges it would put them on a parity with the Washoe County judges and access would be the same for Clark County citizens.

Senator Porter asked if there should be language added to S.B. 401 that one additional judge be a juvenile judge. Judge Steel said there are some grounds for that. She said she is working currently with the Assembly Committee on Judiciary on a one-family-one-judge way of processing the cases. Judge Steel continued one of the provisions would be in the event a family goes into crisis with an abuse/neglect circumstance, that abuse/neglect judge would take over all issues of that family and preempt the divorce or custody judge until the case is resolved. She added in those circumstances there would more than likely be more work for the current juvenile judge who also handles abuse/neglect cases.

Senator Porter said he could not recall if the quantity of juvenile judges was a department decision or a legislative decision. Judge Steel said she believed it was decided by the department and added the department presides over three hearing masters who help them get through the cases. She said there has not been a request as yet for more judges to be assigned to the juvenile division.

Chuck Short, Court Administrator, Eighth Judicial District Court, said legislatively the family division shall designate at least one judge for the juvenile caseload. Mr. Short submitted data justifying the need for five additional judges in the court’s family division (Exhibit C. Original is on file in the Research Library.). He said domestic violence has been Clark County’s most rapidly growing caseload component. Mr. Short pointed out that in 1993 there were approximately 2,000 domestic violence cases in Clark County, approximately 7,000 in 1998, and at the rate Clark County is growing he expects over 10,000 domestic violence cases in 2001.

Senator Porter commented Judge Steel had said earlier there had not been a request for more juvenile judges, yet the chart on page 13 of Exhibit C indicates 21 percent of the cases in 1998 were juvenile cases. With this in mind, Senator Porter asked Mr. Short if he thought the workload would support an additional juvenile judge.

Mr. Short pointed out the juvenile court judges have access to hearing masters to help manage the calendar. He added that in domestic cases the court is not allowed to utilize referees or masters, only judges. He continued the increased juvenile caseload is being managed by increasing the time of hearing masters, which could be a full-time employee or a professional contracted private attorney. Mr. Short furthered the reason masters are not allowed to be utilized in domestic cases is because there was a lot of criticism with the masters system back in the early 1990s.

Senator Porter asked if utilization of masters was criticized for domestic cases, why it is allowed for juvenile cases. Mr. Short guessed it was because so many families were being negatively affected by the tiered system. Mr. Short said the masters currently being utilized in juvenile cases have been with the court 24 years, 20 years, and 9 years. Mr. Short furthered as far as needing more juvenile judges, he felt that the first three additional judges should go to domestic cases.

Judge Steel said, with regard to the consequences of an overburdened court, she could not agree more with the circumstances laid out on page 15 of Exhibit C.

Senator Wiener asked if the issues of a juvenile case go to the adult court when a child becomes legally of age. She also asked if there was any information showing the case success other than the assignment having continuity.

Mr. Short replied that generally the continuum seen in the court system is when a case comes in through abuse and neglect and within a short time, if the continuum is consistent, the matter will be considered as juvenile delinquency. He continued if the delinquency becomes more severe the youth is certified into the adult system.

Senator Wiener asked if there are some cases with a history where a child can be diverted from being certified as adults because of the continuity provided through the masters who can stick with that child. Mr. Short said yes, that does occur in that the masters are assigned to youths with last names starting with a certain letter of the alphabet. He continued the last name triggers which master a youth goes to which creates case continuity over time.

Chairman James asked about another bill which would provide rotation of district judges into the family division and how that bill interplays with S.B. 401. Judge Steel said the bill presently being looked at is a voluntary pilot program. She continued there would have been agreement with the judge coming in and the judge going out, and the chief judge would have to sign off on a contract of terms.

Chairman James asked Judge Steel if she was in support of rotation of the judges. Judge Steel said she personally was not in support of the rotation of judges because it would affect the continuity issue.

James J. Spinello, Lobbyist, Clark County, said the county and the court have reviewed the request for five additional judges. He called the Senate Committee on Judiciary’s attention to pages 16 through 19 of Exhibit C addressing the fiscal impact of the addition of the judges. Mr. Spinello said Clark County has agreed to an addition of three judges this biennium as opposed to five judges. He said while the impacts are considerable, the greatest dilemma is if five judges were to be appropriated at the state level, there is simply no room for them in the current court facility. Mr. Spinello continued Clark County assumes it will support the courts above the property tax override whereby roughly half of the funding for the family court will come from the county general fund.

Chairman James asked if the monetary figures on page 16 of Exhibit C depict the cost of three additional judges by itself. Mr. Spinello said everything is totaled out and then there is greater detail on the following pages.

Judge Gibbons said S.B. 401 was discussed at the last meeting of the Nevada District Judges Association and the association felt strongly about this bill in that more family court judges are needed in Clark County to support the court and the people of Clark County.

Judge Robison said he was very concerned about juvenile and family court matters. He said although he has seen a vast improvement in family court in the last year, it is not enough. He said it is tough to give the cases in Washoe County the attention they need, but Clark County is an entirely different world and they need help down there on the caseload. Judge Robison indicated he was a juvenile judge in Clark County for a month in December 1997 and the amount of things a juvenile judge has to handle, not counting the hearings, is unreal. He furthered the juvenile judges have to oversee the masters, approve the masters’ reports, and handle the different boards concerned with juveniles. He stressed there is just not enough time to handle all of the duties required of a juvenile judge and that he was busier as a juvenile judge than anywhere else he has worked in the state.

Senator Porter asked Mr. Short about the cost budgeted for the additional judges as set forth in Exhibit C. Mr. Short said the figures set forth in Exhibit C show the state’s share of the cost and that it represents 6 months of salary. Mr. Short continued the additional judges, if approved by the Legislature, would take office January 2001 so they would be paid out of the current budget for 6 months. He stated he believed the cost to the state this biennium would be $62,000 per judge. Senator Porter asked about the cost figured into the budget for the year 2000. Mr. Short reiterated the additional judges would not take the bench until January 2001.

Senator Titus asked Mr. Short how much it would cost to pay five additional judges in the next budget. Mr. Short said assuming there are no changes in salary it would cost somewhere around $120,000 per year per judge including benefits. Mr. Short added the county pays for the support staff and the facilities. Chairman James pointed out the original request for five additional judges has been reduced to three additional judges at the hearing. Mr. Short stated with regard to the dilemma of the facilities and the onerous fiscal impact on Clark County, the leadership of the court indicated to the county manager that three additional judges were the minimum which could be accepted.

Senator Wiener said it was stated earlier in testimony that three of the five additional judges requested would handle domestic violence cases. She asked if the court is only to receive the additional three judges, if all three would handle domestic violence cases only. Mr. Short replied there is not consensus in the court right now on this matter. He emphasized there are a group of judges who feel strongly that the three additional judges be assigned to the domestic violence caseload, but there is also a group of judges who feel strongly that there be another juvenile judge. Mr. Short recommended doing internally a weighted caseload analysis to understand where the resources should go. He said that is a technique other courts in other states have utilized and has not yet been done in Nevada.

There being no further testimony, Chairman James closed the hearing on S.B. 401 and opened the hearing on S.B. 493.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association, said he would not be providing substantive testimony with regard to S.B. 493 and added that this bill was encouraged by the more rural counties where a grand jury is not available. He stated this bill will diminish some of the outcry for law-trained judges in the rural areas, giving an opportunity for relief through the district courts if there is a plain error. He submitted suggested language amendments to S.B. 493 (Exhibit D).

Senator Care asked for an explanation of the current law and how it operates when someone is indicted, arrested, or makes an appearance at a preliminary hearing, and how S.B. 493 would change the law.

Noel S. Waters, District Attorney, Carson City, said there is an existing statute which allows a prosecuting attorney to appeal an erroneous decision by a justice of the peace or a magistrate. He continued the customary procedures in refusing to bind over a criminal defendant to the district court are if an individual is arrested, he has a preliminary hearing within 15 days and the standard at a preliminary hearing is whether there is slight or marginal evidence to believe that a crime has been committed and if this particular defendant has committed the crime. He pointed out that filtering process authorizes the case to be transferred to the district court in that jurisdiction to try the case. He said he believed the procedure under Nevada Revised Statutes (NRS) 173.035, subsection 2, is somewhat archaic and allows a prosecutor to make a motion for leave of court to file the criminal information despite a refusal by the lower court judge to bind the case over. He furthered NRS 173.035, subsection 2, requires the prosecutor to support his motion with affidavits of individuals having personal knowledge as to the commission of the offense. Mr. Waters said some of this procedure goes back to the days before there were court reporters in such hearings. Nevertheless affidavits must still be produced of all the witnesses who testified and those affidavits must be appended to the motion for leave of court to bind the case over. He pointed out in going back to 1976 the Nevada Supreme Court has applied a standard in this area of an egregious error and oddly enough there has never been Nevada case law defining "egregious error." Mr. Waters stressed for this reason it is unjustifiably difficult to bring a case to the district court to have guilt or innocence decided by the trial court, and essentially it has made a magistrate’s decision unassailable when procedural hurdles are taken with the gathering of affidavits and the standard that has to be met. He stated this has become extremely important in 15 of Nevada’s 17 counties where customarily there are not grand juries.

Mr. Waters said the grand jury indictment process is viewed as an alternative to the preliminary hearing process. He understands Washoe County has one grand jury that sits all the time and in Clark County there are always two sitting grand juries. He furthered Carson City has had one grand jury in 10 years; many of the counties do not have a sitting grand jury except maybe every 4 or 5 years, and in some of those cases the grand jury is not empowered to hear criminal matters as it is an investigatory grand jury, perhaps to look into county finances and the like.

Mr. Waters said S.B. 493 will allow a prosecutor to appeal an erroneous bind-over decision by a magistrate and have that appeal measured on a plain error standard. He pointed out a plain error standard gives the prosecutor a significant burden to show the district court judge that an error has been made. Mr. Waters remarked he has been district attorney in Carson City for 14 years and recalled using the present process five times. He said the present procedure does not allow errors to be remedied and, where a sitting grand jury is not available, an erroneous decision to find probable cause amounts to an acquittal on the merits.

Senator Wiener asked, with reference to the language on page 2, line 30 of S.B. 493, what "other examining officer" would be. Mr. Waters said he thought it might be intended to mean pro per judges who were sitting by way of appointment.

Senator Wiener asked if that were the case was there an advantage to saying pro per judges specifically, or is there anybody else to whom "other examining officer" might apply. Chairman James said it just applies to whoever presided at the preliminary examination.

Senator Care asked Mr. Waters for an example of "egregious error" as opposed to "plain error." Mr. Waters said the most recent example he could give was a hit-and-run case last year where the justice of the peace did not bind over the felony on an argument made that it must be proved the driver of the car knew she had hit a person when she left the scene. Mr. Waters stated it was not enough to show that the driver of the car knew she was in an accident. Mr. Waters said he believed that was an error and he appealed the case; another judge sitting by appointment at the district court level agreed. Mr. Waters stated out of five cases he was successful three times and reiterated "egregious error" has yet to be defined by case law.

Senator Care asked Mr. Waters if he recalled what the other four cases were where he had to demonstrate "egregious error." Mr. Waters said he recalled one case of a multiple defendant involving a burglary and another case involved issues of trafficking.

Scott Doyle, District Attorney, Douglas County, said David S. Gibson, Lobbyist, Clark County Public Defender, had pointed out S.B. 493 would tend to have a disruptive effect on the way Clark County had structured its contractual relationship and assignment of public defenders. Mr. Doyle thought it would be appropriate for Mr. Gibson to explain that difficulty and then the proposed amendment (Exhibit D) could be discussed to show how it addresses the concerns raised by Mr. Gibson.

David S. Gibson, Lobbyist, Clark County Public Defender, said if the amendment (Exhibit D) is approved and made part of S.B. 493 that would take care of Clark County’s concerns with the bill. He said at the conclusion of a preliminary hearing in Clark County the case is dismissed and the county’s obligation to the defendant ends. He continued from the time of dismissal until the time of reappointment, if the district attorney decided to file an appeal, the public defender loses contact with the client at that time, as the client is released from custody when the case is dismissed. Mr. Gibson said that most of the time Clark County’s clients are not from the Las Vegas area anyway so there is no way to contact the client. He furthered as a mechanical point, it would be very difficult for the Clark County Public Defender to be representing the client.

Chairman James asked how that situation would be dealt with in northern Nevada. Mr. Gibson said he did not know, but if a case is dismissed in Las Vegas and the district attorney does not like the way the decision went, the case may or may not go to the grand jury and have the person indicted. He added that starts a whole different procedure and the public defender does not have the concerns about responding to appeals, or notice to the defendant and a continuing obligation.

Chairman James asked if the contract could be changed so the public defender represented a person through an appeal. Mr. Gibson said Clark County’s caseload is the problem in that its public defenders are assigned 15 or 20 preliminaries every week. He said it is an unrealistic burden to follow a case that has been dismissed.

Chairman James said he would not want to complicate the judicial system whereby if someone committed a crime in Carson City they may be bound over and tried on that case, whereas if they committed the same crime in Clark County they might not be bound over and prosecuted. Mr. Gibson said if crimes are committed where a grand jury is in place it opens up a whole different kind of potential for abuse.

Chairman James said it was easier to go to the judge and argue that the justice of the peace made a mistake than it is to get a grand jury indictment after the preliminary hearing has been lost. He continued in his opinion it probably would not be good policy to pass S.B. 493 because the bill should be beneficial for the entire state, not just one county and not another. Chairman James said he thought this bill was inviting a prosecutor to take a case right to the district court every time a defendant is not bound over.

Senator Care asked if by taking Clark County out of S.B. 493 the egregious error standard would remain in Clark County, but there would be a plain error standard in the counties that do not have the grand jury practice.

Mr. Doyle replied the egregious error standard would be removed from the bill by amendment for all practical purposes statewide. He said if for some reason Clark County was to not have a sitting grand jury, the information process contained in S.B. 493 would be available and the plain error standard would apply in that jurisdiction.

There being no further testimony, Chairman James closed the hearing on S.B. 493 and adjourned the meeting at 10:15 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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