MINUTES OF THE meeting
of the
ASSEMBLY Committee on Constitutional Amendments
Seventy-Second Session
April 25, 2003
The Committee on Constitutional Amendmentswas called to order at 12:01 p.m., on Friday, April 25, 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. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. William Horne, excused
GUEST LEGISLATORS PRESENT:
Ms. Chris Giunchigliani, Assemblywoman, District No. 9
STAFF MEMBERS PRESENT:
Michelle L. Van Geel, Committee Policy Analyst
Kim Morgan, Chief Deputy, Legislative Counsel
Sheila Sease, Committee Secretary
OTHERS PRESENT:
Lucille Lusk, Cochairman, Nevada Concerned Citizens
Assembly Joint Resolution 14: Proposes to amend Nevada Constitution to revise provisions governing right to vote and to repeal certain obsolete provisions. (BDR C-1331)
Chairman Mortenson opened the hearing on A.J.R. 14, explaining that it might seem familiar as the Committee previously passed it with an amendment added. When a resolution was amended, the Legislative Counsel Bureau drafted a new resolution. Mr. Mortenson suggested the Committee members, upon reviewing it, would find it was exactly what they had passed.
Assemblyman Gustavson believed the Committee had inserted different language defining what “insane person” would be, rather than just eliminating “no idiot or insane person,” so these persons would not be voting. Michelle Van Geel, Committee Policy Analyst, stated that Mr. Gustavson was correct. The original resolution had other language “as far as being adjudicated mentally incompetent,” but the American Civil Liberties Union (ACLU) asked for language specifically for persons who were adjudicated mentally incompetent for the purposes of voting. However, the courts did not adjudicate for the purposes of voting. Upon speaking to the Legal Division and Assemblywoman Chris Giunchigliani, the sponsor of the resolution, the ACLU agreed to the drafted language.
Chairman Mortenson said he understood there was no provision for any medical authority to adjudicate a person incompetent to vote, and the registrar of voters did not receive any information indicating a person was incompetent, so why have it? That was the philosophy.
Assemblyman McCleary pointed out line 7, page 1, which stated “resides in the state for six months,” and he questioned whether this was constitutional. He believed the Supreme Court had determined 30 days was the standard, but since federal law superceded state law, perhaps this would not matter. He regretted this was not caught before the resolution was redrafted.
Lucille Lusk, Cochairman, Nevada Concerned Citizens, noted a “big difference between stating that persons who have been adjudicated incompetent or insane will not be able to vote and saying that insane individuals will be able to vote.” The action or consideration of this Committee previously was quite different, from her perspective, than what was now presented. She stated that, in fact, there was a procedure for adjudicating persons incompetent, and there was a procedure for adjudicating persons insane. The fact that there was currently no process for providing that information to the registrar of voters did not mean there could not be. A felon could not vote, and there was no process in place for the registrars to be informed of whom those felons were. But this legislature was putting in place a process whereby the Department of Corrections would be required to notify the county clerks of those released from prisons. Ms. Lusk held that it made no sense that a person adjudicated incompetent or insane for all purposes of making their own decisions would then become voters. Further, she did not know about the six months but knew there had been discussion as to whether that was permissible.
The other portion of the resolution, she continued, dealt with the removal of some obsolete language regarding the election of U.S. Senators, which resulted from an amendment to the Constitution of the United States. In conclusion, she believed the Committee needed to pass the resolution with at least the portion dealing with eliminating the obsolete language, and, perhaps, the members wanted to address the six-month issue. From a perspective of logic and reason, she argued that it “was unwise to extend the privilege of an elector to individuals who have been adjudicated incompetent or insane.”
Chairman Mortenson believed the six months should remain in law, and the Constitution of the State of Nevada should be a broad document, because it might change from six months to three months or to a year. Ms. Van Geel called the Legal Division for an opinion on including “incompetent” in the bill.
Assemblywoman Chris Giunchigliani, District No. 9, declared that even with the language “adjudicated mentally incompetent for the purposes of voting,” the Legal Division acknowledged such a process did not exist, and so she agreed that it should be struck; that was why the bill was rewritten.
Chairman Mortenson agreed with Ms. Lusk’s point that just because there was currently no process did not mean there could not be a process in the future. Assemblywoman Giunchigliani said that whichever way the Committee decided to go was fine with her, but she felt it was important that people knew that one could be adjudicated and “therefore broadly could have their rights restored.” That was her original purpose for the language.
Perhaps, she said, the addition of the “adjudicated mentally incompetent with voting rights” was the key piece, because voting rights were not denied if a person was adjudicated mentally incompetent for purposes of voting. She suggested a return to the original wording that left off the words “for the purposes of voting.” Ms. Van Geel read from the original copy that deleted “idiot or insane” and added, “who has been adjudicated mentally incompetent unless restored to legal capacity.” Assemblywoman Giunchigliani felt that satisfied Ms. Lusk’s question, which was fine with her, if that was the direction the Committee wished to take.
Assemblyman Gustavson agreed with Ms. Lusk and Assemblywoman Giunchigliani. Assemblyman Sherer agreed with them also, stating he favored the original wording. Chairman Mortenson expressed a likewise opinion. Assemblywoman Giunchigliani said that, if they preferred the original language, the bill would not start again, because the Committee already passed it once that way. Ms. Van Geel held that since the Committee had voted to amend and do pass A.J.R. 14, they needed to rescind that action, so that it would revert to its original form, and do pass the A.J.R. 3 of the 71st Session. They could then choose not to process A.J.R. 14.
Chairman Mortenson called for a motion.
Assemblyman Gustavson moved to rescind the amendment the committee made to A.J.R. 3 of the 71st Session.
ASSEMBLYMAN McCLEARY SECONDED THE MOTION.
THE MOTION PASSED. (Assemblyman Horne was not present for the vote.)
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)
ASSEMBLYMAN GUSTAVSON MOVED TO DO PASS a.j.r. 3 of the 71st Session.
ASSEMBLYMAN SHERER SECONDED THE MOTION.
THE MOTION PASSED. (Assemblyman Horne was not present for the vote.)
Chairman Mortenson closed the hearing on A.J.R. 14 and opened the hearing on A.J.R. 13.
Assembly Joint Resolution 13: Proposes to amend Nevada Constitution to provide that special session of Legislature may be convened by petition by Legislators. (BDR C-313)
Chairman Mortenson explained that this bill proposed special sessions could be called by the legislature, not involving the Governor, when two-thirds of both houses voted to do so. He stated there were 34 state legislatures that had the ability to call a special session when deemed necessary. Nevada’s Legislature was one of only 16 that could not. The philosophy was that the Legislature was an independent branch of the government that was supposed to be detached from the Administrative Branch, yet the Legislature must be called into special session by that Administrative Branch. It was Janine Hansen’s idea that the Committee should pass both A.J.R. 13 and A.J.R. 7 simultaneously, and, if A.J.R. 7 passed the Senate, then A.J.R. 13 would be withdrawn. If A.J.R. 7 died in the Senate, then A.J.R. 13 would go ahead on its own. Everyone agreed to that.
Assemblyman Sherer asked if “petition” meant that the Legislature would do its own petition. Chairman Mortenson believed so and stated that when the petition was completed, it would go to the Secretary of State, who would then call the special session.
At this point, Kim Morgan, Chief Deputy, Legislative Counsel, arrived to clarify a question raised during the hearing on A.J.R. 14, regarding why the phrase “mentally incompetent” was not being used as it was in A.J.R. 3 of the 71st Session. Ms. Morgan remembered there was an intermediate step that was not visible here. She did not know there was a problem stating, “who has been adjudicated mentally incompetent” because courts did adjudicate mental incompetence. The policy concern that was raised was that a person could be mentally incompetent for several different reasons, many of which might not affect the ability to vote. As to the next set of language in A.J.R. 3 of the 71st Session, she reported the following:
Dr. Siegel of the ACLU had suggested “adjudicated mentally incompetent as to voting” or something that was narrower. The point was, courts clearly do not adjudicate people mentally incompetent as to voting, or many of us would be in trouble. Where we are left is going back to the broader category, which may give rise to some policy concerns. Clearly we can’t do the middle ground suggestion as to voting or just take out the reference to ”idiot” or “insane,” because maybe it’s okay to just be silent as to people who have been adjudicated mentally incompetent. Here, I guess, I am suggesting policy, but for your consideration, where is the standard on who is sane enough to vote? If these people are really that bad, they are probably in an institution and aren’t voting anyway. Where is the line that you want to draw? This is the compromise that Brenda Erdoes and I came up with to give you something that you could act on that might work, which is, let’s just take out the obsolete language and have the Constitution be silent as to a prohibition in this area. But, there again, this is certainly a policy choice for you.
Assemblyman Gustavson asked if the word “insane” were deleted from the Constitution, could the “for voting purposes” be added legislatively? Ms. Morgan believed that would be difficult in that the Constitution described who had the right to vote, and the Legislature could not impose additional limitations.
Chairman Mortenson stated that he believed the Committee had made the policy decision that they felt that there should possibly be some limitation if a person was mentally incompetent, as they passed A.J.R. 3 of the 71st Session.
Returning to A.J.R. 13, Assemblyman McCleary asked if the Chair would entertain a motion. Chairman Mortenson felt it would be wise to amend A.J.R. 13 and do pass, with the amendment limiting special sessions to 20 days, if that was the will of the Committee. Assemblyman Gustavson agreed this was a good idea.
Assemblywoman Giunchigliani felt the Constitution should rarely be changed, and a petition for a special session should be specific. Lines 23 and 24, and lines 39 through 41 were, she said, expansive language because they declared “and such other legislative business as may be approved for consideration.” This language gave her some discomfort.
Lucille Lusk commented that the new language permitted other business, and she recommended that it not be included. She agreed with Assemblywoman Giunchigliani that the business of the special session should be specific to the intent of the petition. At the same time, she continued, she felt the same limitation should be placed on any special session the Governor might call. Additionally, while there was an appearance of a 20-day limit in the existing language, she clarified that was actually a limit on compensation for the legislators. She wanted to equalize the number of days of the session and the number of days the legislators could be paid. She thought it would be best to use calendar days to stay consistent with other time limitations. Chairman Mortenson also preferred the consistency of using calendar days.
Ms. Van Geel created the language of the amendment as follows:
Chairman Mortenson asked Ms. Van Geel if she wanted to limit the type of business. Ms. Van Geel, Committee Policy Analyst, stated she was not an attorney so she was not sure how this would be done, but she directed the Committee to look on page 2 of the bill, lines 9 and 10, which was the same language currently permitting the Governor to call the special session: “Legislature may be convened on extraordinary occasions.” She thought that might be the limit. Striking out the other language in the petition it looked similar, she felt, “to current language in the Constitution allowing the governor to call it.”
Assemblywoman Giunchigliani said that made good sense. Also, lines 25, 26, and 27 were redundant and might just need to be edited by the Legal Division. Mr. Gustavson stated both areas read “two-thirds,” but the language of line 25 was slightly different: “The Legislature by joint resolution approved while in session.” Chairman Mortenson allowed that the Legal Division would clean up those discrepancies. He was ready to accept a motion.
ASSEMBLYMAN McCLEARY MOVED TO AMEND AND DO PASS A.J.R. 13.
ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.
THE MOTION PASSED. (Mr. Horne was not present for the vote.)
Chairman Mortenson closed the hearing on A.J.R. 13 and opened the work session on A.J.R. 7.
Assembly Joint Resolution 7: Proposes to amend Nevada Constitution to provide for limited annual legislative sessions. (BDR C-43)
Chairman Mortenson stated he and Ms. Van Geel had a plethora of potential amendments for this resolution in the work session document (Exhibit C). The first was to add Assemblyman Atkinson as a cosponsor. The second potential amendment changed the length of the odd-numbered sessions. The handout (Exhibit D) of two potential amendments that Mr. Mortenson gave was more specific; as the legislature would meet for 120 legislative days, it was to be contained within 140 calendar days. This allowed for a break near the deadlines to permit the Legal Division and other staff to complete the drafting of bills or amendments. Under Tab A of the work session document (Exhibit C), a partial memo prepared by Don Williams of Ms. Van Geel’s office, concerning annual legislative sessions and legislative versus calendar days, explained other states’ definitions of each.
Chairman Mortenson interposed that many states differentiated between calendar and legislative days. He suggested keeping the 120 legislative days of the regular session contained within 140 days so that there could be breaks of a few days while the Legislative Counsel Bureau’s (LCB) Legal and Research departments caught up on their amendments and bill writing. In his opinion, it would be a much more efficient process because Legal would not be working 24 hours per day while the legislators “sat on their thumbs.” He asked what Assemblywoman Giunchigliani, the sponsor of the bill, thought of that.
Assemblywoman Giunchigliani thought it was not a bad idea and very acceptable to her, provided the legislators were paid only for the actual days worked, with no salary for any days of a break. Ms. Lusk agreed the amendment had merit, but further recommended that a schedule be released in advance of the session for the purposes of planning travel between Carson City and Clark County. Chairman Mortenson felt that could be done in the rules of operation.
Assemblyman Sherer commended Chairman Mortenson for his suggestion of legislative days within the calendar days. He thought it was “right on target.” He favored that amendment.
The third potential amendment dealt with the length of the even-numbered sessions. Chairman Mortenson suggested, in Exhibit D, a 60-day session contained within 80 calendar days, which allowed for a break, with a limit to the topics of the bills for that session.
Assemblywoman Giunchigliani suggested this could be done in a regulation rather than in the Constitution. However, she brought up the idea again that each legislator’s bill draft requests would be limited, perhaps two for the Assembly and four for the Senate. This is done currently by statute. Chairman Mortenson thought, for the sake of the constituents who did not want the legislators doing “mischief,” the Committee “should limit it to budget matters and clean-up matters, and so on.” Assemblywoman Giunchigliani said there was language similar to that in several other states, so that would assist the drafting part. She stated, “I just wanted to put that back on the record, that I would be happy to try to work through something in statute. It does not belong in the Constitution.”
Mr. Mortenson asked her, since this was her bill, to clarify the limit the scope of the subject matter during those even-year sessions. He had suggested the budget and clean-up matters. She was satisfied with that and explained the whole concept and purpose of the annual session was “we can’t fix mistakes if we did something wrong in the budget, or we didn’t raise enough revenue.” Sometimes an issue arose, such as with medical malpractice. If the legislature met annually, that could have been dealt with in that session rather than calling a special session. States without a second year tended to have many special sessions. She preferred to have a “concrete time period” to convene to review budget matters to allow limited bill drafts, and to clean up anything missed previously. And, Chairman Mortenson declared, they could deal with the financial matters the Interim Finance Commission handled, which people did not like. Assemblywoman Giunchigliani, despite serving as a member of that commission, believed the commission to be unconstitutional. She favored having 63 duly elected officials making the decisions, rather than a handful of selected officials.
While Chairman Mortenson and Assemblywoman Giunchigliani searched for a better word for “clean up,” Assemblyman Sherer stated his belief that 70 calendar days, rather than 80, was more in line with the 120/140 of the previous amendment suggestions. That was fine with Mr. Mortenson.
Assemblyman Gustavson suggested that changes to the Nevada Revised Statutes (NRS) would not be necessary this session, because any changes to the Constitution required five years to implement. Assemblywoman Giunchigliani “duly noted” and agreed that she would not pursue that.
Getting back to the search for a better word for “clean up,” Assemblywoman Giunchigliani thought it was “budgetary matters” but that was the Committee’s policy decision. Mr. Mortenson asked if the words “limited to budgetary matters” were sufficient. Assemblywoman Giunchigliani thought that would work, but Legal might have better language. It was close to the intent. For further clarification, Ms. Lusk asked if the intent were “to review the budget and make budgetary adjustments, deal with things such as the Interim Finance Committee dealt with, and not to introduce any bill that had money in it, because then that opens it up to everything.”
Chairman Mortenson requested that Ms. Van Geel put that in her notations for Legal to write correctly. Ms. Van Geel wanted more clarification. Ms. Lusk, after stating she was not certain what the Committee’s intent was, proposed budgetary review, adjustments, and the types of issues the Interim Finance Committee handled, but not simply introductions of new programs and new revenues. Mr. Mortenson asked Assemblywoman Giunchigliani what her take on that was. She stated the following:
I think that’s what we’re trying to get to is, and it kind of says that, in “any proposed appropriations or proposed revisions to the executive budget.” I think the language in there kind of tightens that up already, but I’m not advocating opening it up. There may be others that wish to do more, but I don’t think you can tell our Governor, “You can’t come in with some legislation.” But I think that would be contained within that language of revising the Executive Budget.
Chairman Mortenson asked if that language pleased the Committee or did the Committee have comments? It sounded good to him, he commented.
Assemblywoman Giunchigliani suggested a foreword that stated the even‑numbered sessions would be limited to the revisions, proposed appropriations, and proposed revisions.
The next potential amendment on the work session document (Exhibit C) proposed an earlier start for the 60-day session due to restrictions on accepting campaign contributions before and after a session and the commencement of campaigning for elections at the end of that year. This was of concern to Assemblyman McCleary.
If the legislature expected the Governor to make any presentation, the session could not be moved too far into January due to holidays. Assemblywoman Giunchigliani thought convening in March or maybe February allowed the full month or two for the Governor to do budget preparation or modifications. Page 3 stated the Governor’s proposals must be submitted 30 calendar days prior, so they would need the full month of January. However, Mr. McCleary’s point was well made. Assemblywoman Giunchigliani suggested the 60-day session could meet in the spring, rather than in the winter. Assemblyman McCleary again voiced his concern that legislators would be unable to raise campaign money in January, or during the session, or in May, the month they filed.
Ms. Van Geel said the way the resolution was drafted was that both the 120‑day and the 60-day sessions began February 1. If the budget proposal was required to be there 30 days earlier, that coincided with the New Year holiday. Perhaps the 30 days could be reduced by a few days.
Assemblywoman Giunchigliani, referring to the campaign fundraising restrictions, said it was a statutory restriction of 30 days on either side of the session. Chairman Mortenson shared his observation that, while he was in special session, he could not raise money, but he personally discovered that if letters went out in advance of the session, no money came during that time, but it came eventually. It was just deferred, he said. According to Assemblywoman Giunchigliani, bills in the Senate this session clarified when the funds could be raised, and they shortened the restriction to 15 days prior to the convening of any special session. She argued “that the real focus point for this piece of it should not be whether we can raise money or not. I think the process is the timing for the budget preparation that we have to be sensitive to.” She suggested keeping February for convening the 120-day session, March for the 60-day session, and changing the 30-day submission requirement for the Governor to, perhaps, three weeks.
Assemblyman McCleary explained, if the session began in March and ran until May, which is when they filed for election, they would be allowed only four months for fundraising before the primary election. Some people were attempting to bring the primary back a month or two so the window of opportunity narrowed. If both sides won, there would be just two months to raise money, campaign, and win. Assemblywoman Giunchigliani exclaimed she had not considered that. It would possibly require another statutory change. Mr. McCleary stated this was his only real concern. Otherwise, he liked the annual session idea and thought it served “the people better for the legislature to be more responsive and be able to meet annually as things changed rapidly in this world.”
Assemblywoman Giunchigliani responded with a suggestion of a mid-January convening of a 45-day session. She said, “You don’t have to extend the calendar days because your time line would be a totally different effective time line.”
Lucille Lusk interjected that, since Nevada Concerned Citizens [NCC] was generally opposed to annual sessions, the shorter the sessions were, the happier NCC would be.
Finally, the Committee agreed to 45 calendar days with no breaks and 21 days for the Governor to submit budgets or revisions to budgets prior to the opening of the session. Ms. Van Geel stated that if it were a mid-January start for the session, with the 21 days for the Governor to prepare and submit his concerns, they were back into the early January problem. Assemblywoman Giunchigliani guessed they could go the 14 days currently in the law. But Ms. Van Geel stated that still pushed it to late December when starting a session in mid-January. If the 45-day session began on February 1 and ended on March 15, fundraising would begin on April 15, a month before filing. Assemblyman McCleary agreed to that.
The next possible amendment on the list deleted the requirement that would allow the 60-day sessions to be held in Las Vegas. Chairman Mortenson scratched this. Another potential amendment suggested the inclusion of the special session language from A.J.R. 13. This was agreed to. Assemblywoman Giunchigliani suggested deleting lines 43 and 44 on page 2, and lines 1 and 2 on page 3, which disallowed an expanded list of reasons for calling the session.
Ms. Van Geel addressed the question that, in the event of a catastrophe, whether the legislature would require two-thirds of its existing members or of the total members to call itself. The language in A.B. 441, which stated two-thirds of the existing members, might be adopted here. Ms. Van Geel asked if the Committee was comfortable with including similar language in A.J.R. 7. Chairman Mortenson said, “Yes, definitely in A.J.R. 7 and A.J.R 13.” Assemblywoman Giunchigliani said the legislature should have the ability to call itself into session. “And in a catastrophe,” Chairman Mortenson added, “with two-thirds of who might be surviving.” Assemblywoman Giunchigliani claimed the catastrophe language was a statutory change and was not needed in the resolution. Chairman Mortenson agreed.
In reviewing the remaining suggested amendments, Ms. Van Geel said the allowance for breaks could be handled statutorily, not in the resolution.
Assemblyman McCleary clarified there would be no break in the 45-day session.
Number 12 on the work session list provided an amendment stating legislators were paid for each legislative day.
A.J.R 7 provided for the replacement of the $60 limit for postage with a $500 limit. Ms. Van Geel said that this could be referenced in the resolution, but the language would be that the legislature might set the amount by statute. Chairman Mortenson thought that had “died” when last proposed.
Ms. Lusk believed that if it were completely open-ended, the entire resolution would be jeopardized. But she wondered whether it were possible to create a formula based on the population of the district. She believed the $60 amount, even the $500 amount, to be ridiculous. Frankly, she continued, it was circumvented with the $2,800 allowance. But could there be a formula of X number of dollars per district citizens? Assemblywoman Giunchigliani suggested they “fight that issue” another day but remove the reference to the Speaker of the Assembly and the Lieutenant Governor getting the extra $2, unless that confused the issue. Mr. McCleary felt that would confuse it.
Assemblyman Gustavson asked if they could just remove the words “not exceeding the sum of.” Assemblywoman replied that seemed open-ended and the public would wonder, “How much are they going to give themselves?” She said to leave the language and go back to the original language in the Constitution.
Lastly, rather than repeal Section 12 of the Constitution, the Committee deleted the last phrase, which pertained to biennial regular sessions.
Assemblywoman Giunchigliani clarified that in Section 33, page 3, legislative days would replace calendar days.
Chairman Mortenson would submit the amendments to the Legal Division for drafting.
As there were no further comments on this resolution or other matters, Chairman Mortenson adjourned the meeting at 1:25 p.m.
RESPECTFULLY SUBMITTED:
Linda Lee Nary
Transcribing Secretary
APPROVED BY:
Assemblyman Harry Mortenson, Chairman
DATE: