MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
February 22, 2001
The Committee on Judiciarywas called to order at 9:09 a.m., on Thursday, February 22, 2001. Chairman Bernie Anderson presided in Room 3138 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. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Ms. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall - Excused
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Cheryl O'Day, Committee Secretary
OTHERS PRESENT:
Alan Glover, Carson City County Recorder
Barbara Reed, Douglas County Clerk-Treasurer
Amy Harvey, Washoe County Clerk
Kent Lauer, Executive Director, Nevada Press Association, Inc.
Rick Loop, Assistant Court Administrator, Eighth Judicial District Court
Wanda Lopshire, Jury Commissioner, Second Judicial District Court
Chairman Anderson confirmed there was a quorum present and opened the hearing on A.B. 108.
Assembly Bill 108: Makes various changes to provisions related to county clerks. (BDR 1-444)
Chairman Anderson called forward Alan Glover, Carson City County Recorder, who appeared on behalf of the County Association of Fiscal Officers and Nevada Association of County Clerks and County Election Officials, and Amy Harvey, Washoe County Clerk.
Mr. Glover described A.B. 108 as a collection of ideas presented by county clerks from all across Nevada. He then summarized the proposed legislation:
Mr. Glover then specifically addressed Sections 1, 2 and 3 as requested by the Carson City County Clerk’s Office, and which the Nevada Association of County Clerks and County Election Officials (NACO) agreed to include in the bill. He stated that apparently Carson City was the only political entity to utilize that provision of the law. A general grand jury was called by petition in 1986 and another petition was filed in 2000 (amid early voting) and scheduled for mid-March 2001. Upon receipt of the petition, Mr. Glover found no instructions within the statutes related to a grand jury called by citizen petition. He specified that procedural direction was the fundamental request of the proposed legislation.
Mr. Glover said he then requested and, after several months, received guidance from the attorney general via the district attorney’s office. (A copy of the attorney general’s condensed opinion was presented to the committee.) He felt the important part of the opinion (Exhibit C) related to Question No. 2, which addressed the district court clerks’ duties upon receipt of a verified petition pursuant to NRS 6.130. In the event of such filing, NRS 6.130(1), which related to district judges summoning a grand jury whenever a verified petition was presented, imposed no specific duties to be followed. For example, no steps were provided in the event someone intended to withdraw their name from the petition. The court depended upon its inherent and discretionary authority to impose reasonable and necessary procedures to determine the statutory validity and sufficiency of petitions. Mr. Glover explained that he had developed the proposed language from the statutes for “initiative referendum and recall” and applied them to NRS 6.130, the statute for summoning of a grand jury. The opinion of the attorney general’s office noted that Nevada was one of only five states, in addition to Kansas, Nebraska, North Dakota and Oklahoma, that allowed the general public to compel the empanelment of grand juries by citizen petition. Unlike Nevada, those states had established statutorily based signature verification and time requirements, as well as instructions as to how the clerks were to verify petitions and forms.
Mr. Glover then proposed an alternative: that the calling of a grand jury by citizen petition be deleted from NRS 6.130. His logic was that only five states allowed such a petition and only two petitions, both in Carson City, had ever been filed in Nevada. In response to Mrs. Koivisto’s question, Mr. Glover confirmed that Carson City was the only district in the entire state that had utilized the statute as far back as 1900, and then only recently.
Mr. Carpenter then asked what other methods were used for calling a grand jury. Mr. Glover advised that district judges were routinely asked to call grand juries. Mr. Carpenter inquired what prompted a little-used statute to be called upon in that instance. Mr. Glover informed the committee that the issue addressed in that specific petition for a grand jury related to the judicial system itself. Mr. Carpenter then hypothecated that if one did not trust a judge to call a grand jury, then the subject statute was needed. Mr. Glover agreed to the acceptability of the procedure and reiterated the need for specific procedures. Chairman Anderson asked whether the petitioners had requested that a judge call the grand jury. Mr. Glover stated it was not within his knowledge whether or not a judge had been contacted.
Chairman Anderson, in summary, confirmed that if a judge chooses not to call a grand jury when requested, the public still had the right to present the court with a petition under the statute. Mr. Glover confirmed the Chair’s summation.
Mrs. Angle inquired as to the statutes the other four states (Kansas, Nebraska, North Dakota and Oklahoma) used to weigh the rules that governed the process. Mr. Glover stated that he had not researched those statutes but that he had gleaned the comparison from the attorney general’s opinion. Mr. Glover attempted to clarify the discussion further when he stated that Nevada had an extensive body of law as to petitions presented to the court system. None, however, referred to grand juries called via citizen petition. With the appropriate legislation, the statutes that existed could be applied similarly to all petitions. Chairman Anderson questioned a situation in which a grand jury was already empanelled, asking whether the subject matter of a petition would then be presented to the empanelled jury. Mr. Glover concurred.
Barbara Reed, Douglas County Clerk-Treasurer, who also represented County Fiscal Officers Association (CFOA) and Nevada Association of County Clerks and Election Officials (NACO), then addressed the committee. She agreed that some form of clarification was needed, as no procedural instructions existed. She then discussed Section 4 of NRS 6.150, Subsection 4, which increased the amount of mileage paid to jurors from 15 cents to 20 cents. The increase did create a fiscal impact on the counties but 15 cents was considered inappropriately low. Statistically, compared with federal law (34.5 cents per mile), and which Douglas County had adopted, 20 cents was perhaps still too low. That a specific amount be eliminated and the fee tied to county reimbursement rates was considered. When she spoke to Bob Hadfield on the fiscal impact to NACO, he commented that NACO supported the increase as the right thing to do.
Alan Glover advised that the annual Internal Revenue Service memo showed the standard mileage rate was increased for calendar year 2001 to 34.5 cents. He agreed it was unequal that the government paid itself 34.5 cents per mile but jurors with no real desire to appear were only paid 15 cents.
Barbara Reed then offered that Section 5 was also encompassed in two other bills. She concurred that Section 5 could be removed and merged with the fee bill before the Senate, if the Chairman and the committee preferred.
Amy Harvey, Washoe County Clerk, discussed Section 6, the repealing of NRS 3.290, specifying that the county clerk publish a list of cases submitted but still undecided, and NRS 3.295, instructing the county clerk to prepare and submit a list of “submitted but undecided” matters to clerk of supreme court. She indicated that the County Fiscal Officers Association and the Nevada Clerks Association were in favor of repealing those sections and the reporting requirements. To her knowledge the only county to satisfy the requirement was Clark County, as other counties had not submitted reports.
Chairman Anderson inquired whether the repealing would lessen the “blotter” section of local newspapers’ obligation to report certain types of cases. Ms. Harvey responded that the reporting requirements would still be met by the district courts through the Administrative Office of the Courts (AOC). Chairman Anderson then summarized his understanding of the requested legislative action as a request by the county clerks that the legislature proceed with the bill as outlined, with the exception that Section 5 be removed and carried by the Senate, or that the statute be eliminated. Ms. Harvey and Mr. Glover agreed.
Mr. Carpenter questioned the witnesses as to page 2, number 7, where verification of signatures was discussed. He began with, “any signature on the face thereof .…” and asked how the process worked in actual practice. Mr. Glover advised that a number of steps were taken. Often standard lists requested individuals to print their names, the clerks would perform database name searches, research different spellings shown, and compare addresses or search by address; anything that would provide a connection between the signers and registered voters and would validate signatures.
Chairman Anderson called Kent Lauer, Executive Director of the Nevada Press Association (NPA), to the witness table. Mr. Lauer advised that the NPA represented approximately 40 newspapers throughout the state of Nevada. His stated concern with Section 5 involved the fee court clerks who were allowed to charge for copying public records. He felt $1 per page for regular, not certified copies, was excessive. He urged the committee to compare that fee with the rates charged by other governmental offices. He felt that the act of making copies should be viewed as a regular, day-to-day task of government employees as they were representatives of the public. He suggested that the fee be changed to reflect the actual costs of copying, for ink and paper.
Chairman Anderson followed Mr. Lauer’s lead and compared the services available at Kinko’s with that of a governmental office; walk-in service verses copying pursuant to a chain-of-possession, and discussed the “law of unintended consequences.”
Ms. Buckley stated she saw Mr. Lauer’s point but voiced her hesitation in amending a bill drafted by the court clerks. The process of bill submission and how notification given to the court clerks allowed them their best counter-arguments was outlined and suggested.
The Chair called for further testimony or questions on A.B. 108 before closing the hearing on A.B. 108. Chairman Anderson requested the committee hold A.B. 108 for potential consideration as to whether the committee wished to keep that area of the statute or do an “amend and do pass” on the bill as it was presented.
Chairman Anderson then opened the hearing on A.B. 110.
Assembly Bill 110: Revises provisions governing summoning of jurors by justice’s court in certain counties. (BDR 6-179)
Chairman Anderson called Wanda Lopshire, Jury Commissioner for the Second Judicial District Court, and Rick Loop, Assistant Court Administrator for the Eighth Judicial District Court, to the witness table. Mr. Loop introduced Ms. Lopshire and himself to the committee. He then advised that their appearance and testimony was on behalf of the Second and Eighth Judicial District Courts and Clark County in support of A.B. 110.
Mr. Loop called the committee’s attention to a handout (Exhibit D) on the Eighth Judicial District Court that reflected 48 jury trial requests over the last two years from that district’s justice courts. The same situation arose in the Second Judicial District Court. Both judicial districts received requests from their justice courts for jury panels, as justice courts had no jury selection system in place. However, the problem was the standard practice was in conflict with statute. Statute stated that justice courts would draw their jurors from the “city, precinct or township” of their jurisdiction. District courts were mandated by statute to draw their jurors from, in the cases of the Second and Eighth judicial districts, their respective counties at large. In the Eighth Judicial District Court, justices of the peace have requested or required attorneys to stipulate that they would take a jury panel from the county at large. To date, compliance with that compromise had been complete. Basically, the language in A.B. 110 was “may” language. It enabled justice courts in at least the two jurisdictions with jury commissioners, the Second and the Eighth, to allow justices of the peace to request jury panels and allowed district courts to provide jury panels from the county at large. Specifically, the bill eliminated conflicting language in the statutes and legitimatized the current procedure used by those counties that have jury commissioners.
Mr. Loop believed the bill would simplify the process where jury panels were provided to justice courts. It would expedite movement of cases through justice courts and ultimately reduce caseloads. Further, it would eliminate the need for justice courts to implement a separate jury system, saving money for the counties that fund those district courts.
Ms. Buckley confirmed that she understood the problem as well as the proposed solution. She stated, however, that she did not necessarily believe the bill would do what Mr. Loop and Ms. Lopshire expected. She quoted A.B. 110, at line 10, which began, “when a jury has been demanded ....” After comment on lines 2 and 3, where change of venue was addressed, Ms. Buckley asked how that language would affect Mr. Loop and Ms. Lopshire’s suggestion.
Mr. Loop and Ms. Buckley then discussed and compared the language in Section 1, Subsection (c), items 1 and 2 on page 1, with page 2, Section 2, Subsection (2), where it began, “in county in which a person has been designated as a juror.” He continued that, beginning at line 29 where it stated “the justice may request,” A.B. 110 created an option for justices of the peace to approach district courts with the request they provide jurors from the county at large in observance of their mandate.
Upon Ms. Buckley’s request for further explanation of Section 1, line 12, which referenced “prejudice against him,” Mr. Loop stated it was a reinterpretation of the deleted language marked in red. He continued that Sections 1 and 2 had been added so that Section 2 of NRS 67.010 (summoning of jury) could be included, as they related to each other, thereby allowing the option.
Chairman Anderson suggested that the current issue was perhaps a bill drafter question as it went to the intent of the bill. The Chair then asked Risa B. Lang, Committee Counsel, if there was an opportunity for a change of venue at lines 13 through 15. Ms. Lang then advised that the language was amended to reflect changes in Section 2 so a justice may consider the bias or prejudice of citizens from the city, precinct or township, as well as those of the county, when a change of venue was requested. She agreed it was more of a drafting choice. Chairman Anderson then requested clarification that movement of a trial based on prejudice or bias was at issue. Ms. Lang confirmed that “that would be one way to initiate a change of venue.”
Mr. Brower added that he believed the proposed language in Section 1 was simply due to the additional language proposed in Section 2; a reflection that jurors may be summoned in a change of venue situation from the county as well as the city, precinct or township. He felt it made Section 1 consistent with the proposed change.
Ms. Buckley then asked for clarification where a defendant wanted a change of venue because an impartial jury could not be gathered. She requested confirmation that those justice courts without a jury selection process could then utilize the district courts’ jury pools. Mr. Loop responded that he believed Ms. Buckley understood the proposal correctly and that justices of the peace in the Second or Eighth Judicial Districts could request the jury commissioner provide them with a jury panel.
Mr. Carpenter then asked about procedure where a litigant wanted the jury selected from their district or township alone. Mr. Loop clarified that the procedure remained the same. Justices of the peace in the Second or Eighth Judicial Districts, for example, had the option to select a jury panel from their precinct, township or district. As a matter of practice, that had not occurred. The option was available, but the justices of the peace routinely contacted district court jury commissioners and requested jury panels.
Chairman Anderson then limited the discussion to Mr. Carpenter’s inquiry pointing out that Mr. Loop’s testimony had related specifically to the Second Judicial District Court and the Eighth Judicial District Court, since those courts had jury commissioners. Therefore, if a county added a jury commissioner, the jury commissioner who utilized the procedure could then move the jury selection away from a township.
Mr. Loop then explained that, as A.B. 110 was written, any time a district added a jury commissioner it provided the justices of the peace within its jurisdiction with the option of jury panels obtained via jury commissioner. Chairman Anderson then asked whether there was a jury commissioner in every judicial district. Mr. Loop reiterated that there were jury commissioners, in title and responsibility, and jury selection systems within the Second Judicial District and the Eighth Judicial District. Chairman Anderson then advised that Carson City was treated as a county and had a jury commissioner, but that statute would not apply to that district court jurisdiction. Therefore, in Mr. Carpenter’s case, the statute would not affect his county as there was no district court jury commissioner, although there may be a commissioner for selection in Elko County.
Mr. Loop advised that he was not aware of whose specific responsibility jury selection was for districts that had no jury commissioner. He believed it might fall to the court clerks. He felt that, if a county had a district court jury commissioner, the proposed language would enable justices of the peace within that jurisdiction to request jury panels from that individual and that the jury panels would be formed from the county at large.
Chairman Anderson asked Mr. Brower for his thoughts on the discussion. Mr. Brower wished to address two questions. First, he wanted to confirm that Mr. Carpenter’s question was really aimed at a situation where a litigant wanted a township pool as opposed to a county pool. He felt Mr. Loop had made it clear that it was the judge who had the discretion to go countywide, but A.B. 110 apparently precluded a litigant from demanding or being ensured a township-specific pool. Mr. Brower then requested confirmation. Mr. Loop stated that he believed it would be within the discretion of the justices and that both options were available under the bill, as written.
Mr. Brower then stated that whether justices of the peace had the discretion, as opposed to litigants, was a still undecided policy issue. Mr. Loop confirmed that issue appeared to be a factor of the bill. Mr. Brower readdressed the travel implication for jurors. The example used involved a prospective juror called from Sparks to appear in Incline Village and the potential problems for that prospective juror. Mr. Loop agreed that hardships were a possibility but that jury commissioners had discretion in those matters to provide relief, if necessary, and could remove someone from the panel. A question of what location a prospective juror would then be required to appear at on another day and time was discussed. At Mr. Brower’s further inquiry, Mr. Loop advised that, in his experience, there had not been any rural justice court requests for jury trials; all requests had been in metropolitan areas such as Reno and Las Vegas. Lastly, Mr. Brower asked whether justices of the peace had the discretion to decide whether an individual jury pool was constrained to the township or was pulled countywide. Mr. Loop concurred that the possibility existed within the bill as drafted, but that the issue had not been a concern in actual practice.
Ms. Buckley asked what issues were involved with continuing the practice of requesting litigants and attorneys to stipulate to the use the jury pool. She was concerned that the bill made sense for Clark County but may create problems for residents of other counties whose populations and boundary lines were not as definitive. In response, Mr. Loop confirmed that this legislature was, of course, not required to act on the proposal. He agreed that the proposed legislation completely suited Clark County and that the Second Judicial District had reviewed the bill and had also given it their approval and support.
Wanda Lopshire, Jury Commissioner for the Second Judicial District Court, testified that she felt the proposed legislation would have a positive effect on outer districts. She pointed out that some of the very small districts had trouble building district court jury panels from their county alone. Those counties were often required to draw potential jurors from the nearest county in order to structure a jury panel. That fact also showed how difficult it would be to build a panel for a justice court trial from a township alone. Ms. Lopshire stated she had spoken with representatives from other districts and was left with the belief that A.B. 110 would benefit them as well. She testified on behalf of the Second Judicial District Court in support of Clark County’s position although the S.J.D.C.’s statistics were much lower. She specified that support was due in part to anticipated growth within the district.
Chairman Anderson asked Mr. Loop to clarify the number of cases jury panels dealt with annually. Mr. Loop then explained that many cases, whether civil or criminal, settle even after a jury panel, judge, courtroom and a time certain had been established. The low numbers addressed, 20 to 25 percent of cases, that then went to a jury trial were what remained as unsettled.
Mr. Carpenter voiced concern with regard to a litigant who strongly desired a jury panel built from his own township. Mr. Carpenter understood the difficulties described but was not comfortable with individuals’ rights to a panel of his peers being restricted in any way. As such, he felt the option should remain.
Mrs. Angle requested that the stipulation procedure be readdressed. Mr. Loop advised that he believed the language in A.B. 110 streamlined the process and eliminated the conflict caused by the obligation for urban justice courts to now draw from their precinct or district. It was his opinion that A.B. 110 made the process easier for everyone involved to provide jurors through the changes proposed in the bill. He admitted they could continue with the status quo; however, population and monetary issues based on growth would intensify exponentially with limitations becoming even more restrictive. A.B. 110 would be most beneficial to the Second and Eighth Judicial Districts initially but would prove to be ground-laying and preventative where other districts were concerned.
Ms. Lopshire clarified that the trials in question were small money, civil trials, and not criminal trials.
Chairman Anderson closed the hearing on A.B. 110.
Chairman Anderson then polled the Committee on A.B. 108. He reiterated that the statute appeared to serve a purpose at one time but might no longer be of any benefit. He allowed that the entire provision should perhaps be amended out or, following Mr. Glover’s suggestion, left in the statute but with an amendment proposed to delete Section 5.
Mr. Carpenter felt that, although used rarely, it was used for specific purposes. He wished the bill to proceed.
Chairman Anderson advised he would entertain a motion.
MR. CARPENTER MOVED DO PASS ON A.B. 108 WITH AMENDMENT TO DELETE SECTION 5, ALLOWING SECTION 5 TO BE HANDLED IN ANOTHER BILL IN WHICH IT IS ADDRESSED.
MRS. ANGLE SECONDED THE MOTION.
Chairman Anderson summarized that the Carpenter/Angle motion to amend and do pass A.B. 108 statutorily put forth the methodology and duplicated the processing and verification of petitions. Elimination of Section 5 of A.B. 108, which consisted of the suggested changes to corporate issues, would remove from law NRS 3.290, the requirement to list all cases submitted and published monthly by the clerks, and NRS 3.295, the requirement to prepare and submit a list to the Clerk of the Supreme Court of matters which stood as “submitted but undecided.” Apparently neither practice was routinely performed. Chairman Anderson called for questions and, when none were had, called for a vote of the committee on the Carpenter/Angle motion.
THE MOTION PASSED UNANIMOUSLY.
Chairman Anderson then assigned A.B. 110 to Mr. Carpenter for introduction to the full Assembly on behalf of the committee on Judiciary while he, Chairman Anderson, or Mr. Manendo would introduce the amendment.
Chairman Anderson then addressed a committee introduction in the form of BDR 14-141.
The BDR was submitted to the Committee Chair by the Las Vegas Metropolitan Police Department and was intended to alleviate a problem prevalent in southern Nevada relative to jurisdictional questions.
MS. BUCKLEY MOVED FOR COMMITTEE INTRODUCTION OF BDR 14‑141.
MR. MANENDO SECONDED THE MOTION.
THE MOTION WAS PASSED UNANIMOUSLY.
Chairman Anderson polled the committee for outstanding business. He reminded the committee of the timeframe to introduce bills and discussed the Friday work session involving A.B. 38 (notice of association meetings via electronic mail upon request), A.B. 41 (authorizing city attorneys to defend persons in criminal proceedings under certain circumstances) and A.B. 126 (revised provision regarding recording of certain documents related to real property). The committee meeting was adjourned at 10:25 a.m.
RESPECTFULLY SUBMITTED:
Cheryl O'Day
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: