MINUTES OF THE meeting
of the
ASSEMBLY Committee on Constitutional Amendments
Seventy-Second Session
March 28, 2003
The Committee on Constitutional Amendmentswas called to order at 11:53 a.m., on Friday, March 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Harry Mortenson, Chairman
Mr. Bob McCleary, Vice Chairman
Mr. Don Gustavson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. William Horne, excused
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Michelle Van Geel, Committee Policy Analyst
Sheila Sease, Committee Secretary
OTHERS PRESENT:
The Honorable Deborah A. Agosti, Chief Justice, Nevada Supreme Court
Senate Joint Resolution 5: Proposes to amend Nevada Constitution to allow Legislature to establish intermediate appellate court. (BDR C-607)
Chairman Mortenson:
[Opening remarks.] We will open the hearing on S.J.R. 5. Please come forward, and we welcome Chief Justice Agosti.
Chief Justice Deborah Agosti:
[Justice Agosti introduces herself.] It is my privilege to be here today representing the Supreme Court as the Chief Justice. We’re here today for S.J.R. 5.
This is about the third time around that the Supreme Court has come to the Assembly asking to start the bill as a first-time-around measure. In fact, I did receive word that Assemblyman Horne, who is a member of this Committee, had a question about that, which did reflect some confusion on the part of the Assembly. Perhaps, if it’s shared by other members, I can clear it up at this time. It was, I thought, a very courteous phone call, because Mr. Horne inquired as to whether or not we supported S.J.R. 5, and of course we do. We’ve asked for this bill. I think that question was inspired by the fact that, in the last legislative session, we had A.J.R. 12 of the Seventy-first Legislative Session, which was similar in nature to this and was also requested by the Supreme Court, and which, in the normal course of things, would be before you today at our request as a second-time measure. Because we are seeking a constitutional amendment, as you know, it needs to pass successive sessions of the Legislature, thereafter going to a general vote of the people. If it passes, then the amendment is effected.
We have asked that A.J.R. 12 of the Seventy-first Legislative Session not be pursued, that it be withdrawn. In place, we start over with S.J.R. 5 as a first-time measure. There are differences between the bills. I would like to point out the differences.
The bill, A.J.R. 12 of the Seventy-first Legislative Session, was generously passed by the Legislature in the last session. I would note that the Legislature has always been sensitive to and supportive of the need for an intermediate appellate court, and I thank the Legislature for that. Historically, there’s been a very sympathetic understanding on the part of the Legislature for the Court’s need. A.J.R. 12 of the Seventy-first Legislative Session would place in the Constitution of the State of Nevada a requirement that the Legislature construct an intermediate appellate court. The language in the current bill is discretionary and says the Legislature “may” construct an intermediate appellate court. The reason for that change is not because we don’t think one is necessary now; we do. But recognizing that it will go for a vote, we are not assured, given the financial climate that the state finds itself in now, that the public would be of a mind to vote for something that would tie the hands of the Legislature and require them to expend funds. There will be a financial impact if an intermediate appellate court is constructed. That impact will be minimized because the Supreme Court was increased from five members to seven, five years ago—with the idea that the Court would go back down to five, and two of those positions would become intermediate appellate court positions.
[Chief Justice Agosti continues.] The Legislature also approved and appropriated money to give the Supreme Court a generous amount of space on the top floor of the Regional Justice Center, which is yet unbuilt, in Las Vegas, the idea was that this would serve as quarters already in place for the intermediate appellate court when it’s constructed. Rather than having to go through all of that explanation to a voting public that might be concerned with the dollars over the workload that the Court currently operates under, we thought the better course would be to seek an amendment that makes it discretionary with the Legislature. Need aside, the Supreme Court recognizes that these are tough financial times; if it came to you today to put together an intermediate appellate court, I don’t know if you’d have the money.
We thought that leaving it to the Legislature, with whom we’ve had an excellent relationship historically on this issue, would be the right thing to do. It gives us time to see whether or not the economic picture of the state will improve. We’re hoping, because it’s got to pass two years from now and then go to the next general election, which is another two years, that that’s ample time for the state to, perhaps, find its way out of the situation that we are in right now, and that we would have a better opportunity to convince the public that this is warranted and that it will improve the quality of justice in this state and the access to justice.
As an aside, and just simply because I find that so many of the attorneys in the community misunderstand the function of an intermediate appellate court, I would mention that the institution of an intermediate appellate court does not create the opportunity for two appeals where there was one before. It doesn’t create an extra layer of government. It does not give someone two bites of the apple rather than one, or extra expense for litigants, because the intermediate appellate court becomes the court of error correction. In other words, they do what we of the Supreme Court are doing now in about 80 percent of the cases. That would be the only appeal anyone would be entitled to. The Supreme Court would become a court of certiorari, as it is in most of the other states of the union.
[Chief Justice Agosti continues.] In other words, if an appeal was turned down by the court of appeals, they would apply to the Supreme Court, and it would be up to the Supreme Court to decide whether or not they would take the case, and that would be subject to these criteria:
· Is there confusion in the laws that currently exist?
· Does it address a novel constitutional question?
· Is it a case of important public policy?
If it can’t satisfy one or more of those questions, then the answer is “No, you’ve had your appeal, and the case is over with.” This is the way it operates in most states.
It would then be up to the Legislature to decide what cases are so important that we want them to go directly to the Supreme Court and not go to the intermediate court of appeals. For example, the Legislature might decide that any case where the death penalty has been imposed ought not be decided by the intermediate court of appeals; but it ought to be decided directly by the Supreme Court. Every state that has an intermediate appellate court, and most of them do, is different because every legislature decides what cases are so important to their state that they ought to go directly to the supreme court. In heavily industrialized states, one or two actually have decided workers’ compensation cases should go to the Supreme Court, and not bother at the intermediate court of appeals.
There’ll actually be wonderful opportunities, when the time comes, for the Court and the Legislature to sit down and work together to come up with a system that we can design that will uniquely address Nevada’s needs and concerns. That will include the size of the court and the types of cases that the appellate court would hear, and so on.
I ask that you look favorably upon S.J.R. 5. The Court is hopeful that this approach will lead to a good result when, ultimately, the voters are asked to decide. Right now our caseload, as you know, is approximately 2,000 cases a year. Under standards that are set nationally, you would expect a supreme court to have approximately 100 cases per justice. That means for our Court, 700 cases would be a reasonable caseload. We’re operating at roughly three times that amount. If you were to ask me, “Can you do 2,000 cases a year?” I would say, “Yes, but I can’t do them well.” We’re doing the best we can. We’re working hard.
I think this a wonderful Supreme Court, and we really, really, really have been working hard. We’ve reduced that backlog. We’ve instituted the panel system so that we can get to as many cases as possible, but there are limits. Some cases, we will identify. We’ll try to identify the important cases. Less important cases are just not going to get the attention that, perhaps, they deserve. But that’s only because, humanly, you can’t give the same amount of time to 2,000 cases. That concludes my remarks.
[Chief Justice Agosti continues.] With me today is Mr. Ron Titus who is the State Court Administrator. That means he is the Executive Director of the Administrative Office of the Courts. I don’t know that Mr. Titus wishes to make separate remarks. I’ll ask him, but other than that, I’d be open to any questions you might have. I’ve probably told you more that you need or want to know, but any opportunity that I have to talk about the courts, I like to take.
Chairman Mortenson:
I don’t think you can ever tell us more than we want to know, because we want to know as much as we can learn. No matter whether we’re freshmen or how many terms we’ve served here, we can always learn more. I thank you so much. Are there any questions for the Chief Justice?
Assemblyman McCleary:
Chief Justice Agosti, I appreciate the fact that you’re going to give us the right to do this. Hopefully, better financial times are coming. I do appreciate that.
Do you have any idea what it will cost? I don’t know if that’s appropriate for me to ask in this policy committee.
Chief Justice Agosti:
I don’t know what it will cost, and I’ll tell you why I don’t. The price tag will depend upon how big a court the Legislature decides to have. Personally, in an ideal world, I would like to see the intermediate appellate court commence with six judges, three perhaps situated in Carson City, and three situated in Las Vegas. The caseload would always mean that the court in Carson City must take many southern cases for it to be equal. The geographic diversity is very helpful to have them across the state.
It may be that, when you go to create the court, you say, “Financial times aren’t so good. We might want to start with a court of three.” I don’t advocate that because it really only gives us one more judge than what we’ve got right now. The Supreme Court likely will go back to five to finance two of those positions, but would it be better than nothing? Yes. The price tag will depend upon what the Legislature wishes to do. If it’s a court of six that is all situated in Las Vegas, then that would also affect the price tag, because, if we hang on to that space at the top of the Regional Justice Center, the rent is already being paid for the Supreme Court’s need. So you see, there’s already a spot to put it. There might be some reconstruction that will have to go on to make quarters, but the space will be there. We’ve tried to be long-range in our approach by having two justices already available for the appellate court, if the Supreme Court reduces to five. We have space already in Las Vegas, if we’re able to hang on to it. With this Regional Justice Center, I don’t make any guarantees on that, because the delays have been, as everyone knows, pretty significant. There’s really no certainty yet as to when anyone will occupy the building.
[Chief Justice Agosti continues.] If everything goes according to plan, start-up should not be terribly expensive, depending on the size. If the Legislature decides they would like the Court of six, we’d be talking about financing four judges. If those six judges were all situated in Las Vegas, operating in two panels, then there would be no cost for a location. We would already be taken care of. If they decide, “We want six justices, but we think maybe three up here, and three down there,” then the Supreme Court has to look at our current space needs in our beautiful, wonderful building next door to you, to see whether or not we can fit them in. If we can, then that would affect the cost. Because the scenario is so open-ended, a price tag would be impossible to estimate. We’re committed to not asking for anything palatial or phenomenal. We’re committed to doing this in a way that will not crush the budget of the state.
Assemblyman McCleary:
It will still take a few years to get this done. [Chief Justice Agosti agreed.] Then we can review it at that time and decide what we want to do. Thank you.
Chief Justice Agosti:
Thank you for that question and the opportunity to discuss that issue. I appreciate it.
Assemblyman Gustavson:
Chief Justice, this question is probably a little premature. When we gave you the additional two justices, did we, at that time, designate how you determine which two justices would go back down to the lower court?
Chief Justice Agosti:
I think the assumption was that the two newly created seats would be the ones that would go. I don’t think there’s anything in that statute about it. There’s a number of ways that, when the time comes, it could be approached—if there were retirements happening, for example. It’s so hard to predict what’s going to be six years in the future. I think all things being equal, the expectation was that it would be the two newest seats that were occupied. The justices who were elected to those seats understood that and knew that. No one should be surprised or hurt by any attempt to do the right thing in creating an intermediate appellate court.
[Chief Justice Agosti continues.] You might even get a volunteer. I love being a judge. I’ve been a judge—I’m in my 21st year of judging—and I’m proud of that. I really am enjoying my term on the Supreme Court. But if you would ask me what it would be like to have the opportunity to create the intermediate appellate court, I might just say, “That’s something I might volunteer for. That’s an opportunity to make your mark on history: to be on the ground floor, to create the rules that will govern the court, to decide how the paperwork is going to flow, and so on.” I think you will not find a fight going on at the Supreme Court when the time comes.
[Assemblyman Gustavson thanked the Chief Justice for her openness in answering his question.]
[Mr. Ron Titus, Court Administrator, said he had nothing more to add to what the Chief Justice said in regards to the need for the intermediate appellate court.]
Assemblyman McCleary:
I’m very comfortable with this. I don’t know how my fellow committee members feel, but I feel we could move this as soon as it pleases the Chair. I just wanted to make that known.
Chairman Mortenson:
I agree. We are a very fortunate committee, in that we have a lot of important issues, but we don’t have a lot of work. We can afford the luxury of not passing bills immediately. I would rather not accept a motion to pass this. It’ll probably go the very next work session Committee hearing. It’s just a luxury that we have, and I would like to exercise that prerogative.
Assemblyman Sherer:
I just want to say that I really appreciate what Chief Justice Agosti had to say and the same with Mr. Titus. They did a great job. I’m excited, and I would definitely like to entertain, when that time comes, to move this bill.
[Chairman Mortenson indicated that the Chair would keep that in mind.]
Chairman Mortenson:
We do have one extra piece of business, Committee. Ms. Van Geel will explain it to us. We need to request a bill draft request (BDR), and she will explain why.
Michelle Van Geel, Committee Policy Analyst:
[Introduced herself.] I was contacted by Kim Morgan in the Legal Division. The measure that we passed out of here, A.J.R. 3 of the Seventy-first Legislative Session that proposes to amend the Constitution to revise the provisions governing the right to vote and repeal other obsolete language, was removing the “idiot and insane” from the Constitution of the State of Nevada and adding other language. Since that was a measure from last session and we’re amending it, Legal would prefer to create a new bill, so it has a bill number from this session. We just need to officially request a bill draft request from Legal for that.
ASSEMBLYMAN McCLEARY MOVED FOR INTRODUCTION OF A BDR TO AMEND A.J.R. 3 OF THE SEVENTY-FIRST LEGISLATIVE SESSION.
ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.
THE MOTION CARRIED. (Assemblyman Horne was absent for the vote.)
Chairman Mortenson:
We’re adjourned [at 12:17 p.m.].
RESPECTFULLY SUBMITTED:
Sheila Sease
Committee Secretary
APPROVED BY:
Assemblyman Harry Mortenson, Chairman
DATE: