MINUTES OF THE meeting

of the

ASSEMBLY Committee on Constitutional Amendments

 

Seventy-Second Session

February 28, 2003

 

 

The Committee on Constitutional Amendmentswas called to order at 11:48 a.m., on Friday, February 28, 2003.  Chairman Harry Mortenson presided in Room 3161 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. Harry Mortenson, Chairman

Mr. Bob McCleary, Vice Chairman

Mr. Don Gustavson

Mr. William Horne

Mr. Rod Sherer

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Chris Giunchigliani, Clark County District No.9

 

STAFF MEMBERS PRESENT:

 

Michelle L. Van Geel, Committee Policy Analyst

Sheila Sease, Committee Secretary

 

OTHERS PRESENT:

 

Laura Mijanovich, Northern Nevada Coordinator, American Civil Liberties Union

Richard Siegel, President of Northern Nevada American Civil Liberties Union

 

Chairman Mortenson gave opening remarks and encouraged those present and interested in the bill that was being considered to sign in on the Guest List and requested that they check their position on the bill. 

 

Chairman Mortenson explained that the Committee on Constitutional Amendments had submitted a bill draft request that concerned the minting of silver coins, which was identical to A.B. 188 of the 67th Legislative Session.  Some of the proponents of the bill at that time were Assemblyman Jim Gibbons and Assemblyman Joe Dini.  However, in 1993, it was the opinion of the Legal Division of the Legislative Counsel Bureau (LCB) that the bill was illegal.  This Committee would probably consider the bill again after having sought another opinion from the Legal Division as to its legality.

 

Chairman Mortenson delineated the reason for the cancellation of the next proposed meeting on March 7, 2003.  The Education Committee was holding a meeting in Las Vegas at 4:00 p.m. on that Friday, and thus pre-empted the Constitutional Amendments Committee meeting.  According to Chairman Mortenson, Speaker Perkins had granted the Committee that block of time on Fridays after adjournment of the Assembly Floor Session for the balance of the 72nd Legislative Session.

 

 

Assembly Joint Resolution 3 of the 71st Session:  Proposes to amend Nevada Constitution to revise provisions governing right to vote and to repeal certain obsolete provisions. (BDR C-1009)

 

As Chairman Mortenson opened the hearing on A.J.R. 3 of the 71st Legislative Session, he called upon Assemblywoman Chris Giunchigliani from District No. 9, to come to the witness table.

 

Assemblywoman Giunchigliani elucidated that A.J.R. 3 of the 71st Session was a constitutional amendment proposed in an attempt to amend Article 2, Section 1 of the Constitution of the State of Nevada, which currentlystated that no “idiot or insane person” was entitled to vote.  She advised the Committee that the proposal was to delete that language and replace it with a “person adjudicated mentally incompetent, unless restored to legal capacity.”  The proposal would also relate to repealing Section 34 of Article 4, pertaining to the election of United States Senators by both Houses in joint convention.  Assemblywoman Giunchigliani continued that the particular section in question was nullified in 1913, with the adoption of the 17th Amendment to the United States Constitution, but that the Legal Division of LCB felt it was appropriate to eliminate that language.

 

Assemblywoman Giunchigliani noted that Webster’s Dictionary defined an idiot as a person afflicted with a profound mental retardation.  Because the term had largely fallen out of use in modern legal and medical language, she felt this was an appropriate time to have the voters make sure that we were not using an offensive word that no longer had a standing in our vocabulary.  She went on to say that there were only four states that still used the term and two of those were in the process of amending their constitutions.  Because we were more aware of mental illness in this nation, she did not want those individuals that were so afflicted to lose their rights unless they had been adjudicated as such.

 

Exhibit C was a letter that Assemblywoman Giunchigliani submitted from Rosetta Johnson, M.P.A., President, Human Potential Development, as an advocate for the mentally ill, who supported this resolution.

 

Chairman Mortenson indicated that last session he had discovered the language in the Constitution of the State of Nevada that pertained to the election of United States Senators by the Nevada State Legislature.  At that time he brought the matter to the attention of former Constitutional Amendments Committee Chairman Bob Price, and it subsequently became a Committee bill.

 

Assemblyman Horne expressed concern to Assemblywoman Giunchigliani about line 15, which changed the language to “which has been adjudicated mentally incompetent” and stated that he felt it would be helpful to add “to vote” because the language was very broad in scope.  Assemblywoman Giunchigliani replied that the language was in the portion of the Constitution of the State of Nevada that defined a qualified elector and she was sure that the Legal Division would feel that, because it was contained only within that section, it would not be necessary to add further qualifiers.  If any changes were made in this resolution, the entire process would have to be begun all over again, she cautioned.  By the passage in both Houses this session, it would then go to a vote of the people.

 

Chairman Mortenson then called on others wishing to testify, and Ms. Laura Mijanovich, Northern Nevada Coordinator, and Richard Siegel, President, American Civil Liberties Union of Nevada (ACLU), came to the witness table.

 

Dr. Siegel stated that the ACLU had the same problem with the language of the resolution as that expressed by Assemblyman Horne, in that the language was unenforceable.  “Idiot” referred to old terminology for mentally retarded people and at this time no one was declared “insane,” so in effect, no one was covered.  “Incompetency” was used based on the inability to manage financial affairs, medical affairs, not being able to assist one’s attorney in a court of law, or that a condition could lead to an involuntary civil commitment in a mental hospital.  Dr. Siegel continued that we did not have a process that would have a person reviewed for purposes of voting.  A person in a mental institution, being under appropriate medication for serious mental illness, was likely to go into remission and become perfectly competent to vote.  The American Civil Liberties Union (ACLU) wanted to see this issue restarted or to remove the language “and no idiot or insane person.”  He did not think we could be using the language.  Even though other states had been doing it, he did not feel they were doing it appropriately.  The ACLU backup position would be that the Constitution of the State of Nevada should narrow the language in such a way that citizens would be “adjudicated mentally incompetent” and that it would apply to the voting setting.

 

Laura Mijanovich, Northern Nevada Coordinator for the ACLU, commented that the right to vote was a fundamental right and could not be taken away without passing very high scrutiny.  There were times when a person was committed for reasons that were not germane to voting privileges.  Therefore, the best option would be to remove that language altogether, or have clear language that would narrowly tailor the standard to a very high threshold.  When a fundamental right was implicated, it was better to err on the side of allowing a few delusional persons to vote, rather than take away this right.

 

Chairman Mortenson questioned the witnesses as to whether or not he understood correctly that there was no current provision in the law to define these people and keep them away from the polls.

 

Dr. Siegel answered that there were no effective means that would keep people who are insane or idiots out of the polling booth simply because these were terms that were not a certifiable category.  Insane has not been used for decades by psychiatrists, and that was why the ACLU was addressing this.  People were no longer certified as insane.

 

Ms. Mijanovich inserted that it could be depression, suicidal tendencies, self-mutilation, or other mental disorders that would fall into this category under the provision as stated. 

 

Chairman Mortenson asked that if the Nevada Constitution were changed to use the words “adjudicated incompetent,” if there were a provision in our law that would exclude someone from voting.  Dr. Siegel of the ACLU replied to the affirmative and reiterated that the definition was too broad.  It certainly would include everybody who had gone through the process in which a judge had ruled them to be involuntarily committed to a mental facility and under the care of the Division of Mental Health and Developmental Services.  That would include everybody, the suicidal, and the depressed.  The key was that they were a danger to themselves and others.  If the Nevada Constitution were changed to use the term “the mentally incompetent,” they would all be covered until they were restored to legal capacity, which would mean they were no longer subject to that involuntary commitment.  The concern of the ACLU, as expressed by Dr. Siegel, was that in guardianship provisions, we also made judgments of financial and medical incompetency that do involve mentally and/or physically incompetent persons.

 

Assemblywoman Giunchigliani expressed her appreciation to Dr. Siegel for pointing out that the ACLU did not get together with her, even last session.  She understood the point he was making in his testimony.  The states of Florida, Ohio, and Massachusetts worded their constitutions as “determined to be mentally incompetent for the purposes with respect to voting.”  Those states narrowed that category, and Dr. Siegel was absolutely correct that our wording might paint too broad a brush.  Since we were amending the Nevada Constitution, she would rather do it right even if it meant starting over, Assemblywoman Giunchigliani stated.  She was satisfied with that alternative if it were the Committee’s wish.  She encouraged the Legal Division to review the other states in an attempt to narrow the confines of the language.  One could be adjudicated for many things that would not impact one’s right to vote.

 

Chairman Mortenson pressed the question as to whether or not there was a mechanism to inform the registrar of voters that a person was judged incompetent.  Assemblywoman Giunchigliani answered that she doubted such a mechanism existed, inasmuch as it was only in the past 4 years that felons were reported to the registrar of voters.  However, if someone wanted to challenge a person for mental incompetence at the vote, that would be set aside and the court records could then be reviewed.

 

Assemblywoman Giunchigliani pointed out that Nevada Revised Statutes (NRS) 194.010, in referring to persons capable of committing crimes, included the issue of idiots, as well.  She suggested that someone might want to address correcting that language as well, perhaps in the Judiciary Committee.

 

Dr. Siegel felt it was “significant that the most famous line in Supreme Court history was from Oliver Wendell Holmes, who had said some other stupid things.”  He had said, in ruling on sterilizing, “Three generations of idiots is enough.”  That was written in a decision to authorize the sterilization of mentally retarded people.  He used the word “idiots” and it’s probably one ofthe most infamous negative phrases associated with the name of Oliver Wendell Holmes.

 

Assemblyman Gustavson, suggested that because the Judiciary Committee had been discussing this issue on the death penalty issue and trying to define “mentally retarded” or “mentally insane,” perhaps the Constitutional Amendments Committee could look at that definition.

 

Chairman Mortenson asked Dr. Siegel and Ms. Mijanovich if they had given the Committee a formal amendment.  Dr. Siegel replied that they could get an amendment by Monday or Tuesday.  Chairman Mortenson requested that the ACLU communicate that to the Committee secretary, Mrs. Sease.

 

The hearing was closed by Chairman Mortenson upon hearing no further comments.  He stated that A.J.R. 3 of the 71st Session would be held over for future meetings while awaiting the ACLU amendment.

 

There being no other business, Chairman Mortenson adjourned the meeting at 12:14 p.m.

 

 

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Sheila Sease

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Harry Mortenson, Chairman

 

 

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