MINUTES OF THE meeting
of the
ASSEMBLY Committee on Elections, Procedures, and Ethics
Seventy-Second Session
March 27, 2003
The Committee on Elections, Procedures, and Ethicswas called to order at 3:56 p.m., on Thursday, March 27, 2003. Chairwoman Chris Giunchigliani 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.
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:
Ms. Chris Giunchigliani, Chairwoman
Mr. Marcus Conklin, Vice Chairman
Mr. Bernie Anderson
Mr. Bob Beers
Mr. Chad Christensen
Mr. Tom Grady
Ms. Kathy McClain
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
GUEST LEGISLATORS PRESENT:
Assemblyman David Parks, District No. 41, Clark County
Assemblywoman Sheila Leslie, District No. 27, Washoe County
Assemblyman Harry Mortenson, District No. 42, Clark County
STAFF MEMBERS PRESENT:
Michelle Van Geel, Committee Policy Analyst
Kelly Fisher, Committee Secretary
OTHERS PRESENT:
Vivian Freeman, Citizen
William Puchert, Citizen
John Garvin, representing the Sustainable Growth Initiative Committee
Martha Gould, Citizen
Ralph Elvik, Citizen
Michael Hoffman, Citizen
Janine Hansen, President, Nevada Eagle Forum; and representing the Independent American Party
Patti Cafferata, Citizen
Doug Smith, representing Scenic Nevada
Mike Robinson, Citizen
Laura Mijanovich, representing the American Civil Liberties Union (ACLU)
Jim Slade, Citizen
Randall Edwards, representing the City of Reno
Andrew List, representing the Nevada Association of Counties (NACO)
Michael Pennington, representing the Reno-Sparks Chamber of Commerce
Kimberly McDonald, representing the City of North Las Vegas
Renee Parker, Chief Deputy Secretary of State of Nevada
Barbara Reed, Douglas County Clerk-Treasurer
Antonio Gutierrez, Intern to Senator Dina Titus
Scott Watts, President, Nevada Alliance for Retired Americans (NARA)
Larry Spitler, Associate State Director, American Association of Retired Persons (AARP) Nevada
Mike Kuckenmeister, Chief of Materials Management, State Purchasing Division, Department of Administration
Tom Wood, representing Pharmaceutical Research (PhRMA)
Brian Woodson, Intern to Speaker Richard Perkins
Alan Glover, Carson City Clerk-Recorder
Chairwoman Giunchigliani:
We are going to begin as a subcommittee. I think the Assembly Committee on Taxation is still going on. [Roll called.]
We will open the hearing on A.B. 292. We would like to welcome former Assemblywoman Vivian Freeman and her very able assistant, Willie.
Assembly Bill 292: Prohibits political subdivisions from challenging initiative petitions, referendums or recalls under certain circumstances. (BDR 24‑329)
Assemblyman Bernie Anderson, District No. 31, Washoe County:
[Introduced himself and read from a prepared statement (Exhibit C).] This bill responds to recent cases whereby local government expended public money to challenge the merits of the initiative petition. Indeed, we know that this happened in Reno regarding the train trench petition when the City of Reno argued that the initiative petition should not be placed on the ballot. In addition, a similar action involving local government took place here in Carson City regarding an initiative petition to preserve Fuji Park and the Carson City Fairgrounds. The use of taxpayer money to challenge initiative petitions, or any other petition for that matter, simply because representatives of local government disagree with the petition’s content, is not a fair use of public funds. This bill, A.B. 292, would prohibit such activity.
I would like to explain the provisions of A.B. 292. This measure seeks to amend NRS (Nevada Revised Statutes) 293.725. You may recall that A.B. 443 of the 71st Legislative Session, a bill sponsored by former Assemblywoman Vivian Freeman, created this statute last session. Nevada Revised Statutes 293.725 specifies that state and local government shall not incur an expense or make expenditures to support or oppose a ballot question or a candidate. Assembly Bill 292 expands on this concept by prohibiting a local government or an agency thereof from commencing a legal action or any other action to challenge an initiative, referendum, or recall petition before that petition is presented to the voters as a ballot question. There are provisions in Title 24 of the NRS addressing the format of petitions and the signature requirements. This bill, at the top of page 2, makes an exception for challenges brought by a local government regarding signature requirements, petition format, or other procedural issues relating to the incorrect preparation of the petition.
The intent of A.B. 292 is to prevent a local government from using public money to influence the will of the public by commencing a challenge to a petition on anything other than format and signature matters.
I urge the Committee’s support of this important measure and would invite the other proponents to speak on this measure. We are trying to say that if we here in the Legislature pass a piece of legislation and it is signed by the Governor, it is then challenged and taken to court. If we believe in the initiative petition process, the public should be able to present their petition and have the voters vote on it. After seeing the effect of the bill, there would be an opportunity to challenge it.
Vivian Freeman, Citizen:
Thank you, Madam Chair, and members of the Elections, Procedures, and Ethics Committee. I served on this Committee last session, and I see only two familiar faces. All the rest of you are new, and I think most of you are from Clark County. I served for 16 years from Reno, so I do have experience in this process.
Most of you probably do not know about the train trench project in the city of Reno. It was a very large public works project that was initiated years ago by Senator Raggio. It went through the Government Affairs Committee and the Infrastructure Committee, which was similar to the Taxation Committee, and I served on all of those. I voted on all of those, and I voted for them because everybody told us we really needed it for economic development in the downtown area. At that time it seemed it was probably a good idea. It was enabling legislation, which left implementation up to the city of Reno. That is when everything went crazy.
I know there are a lot of people here from Reno, and I do not mean to insult any of them personally. The voters and taxpayers in the area saw the way it was handled by the City of Reno as being arrogant and dismissive of their concerns. I heard people [speak] in Government Affairs who had a long-time history of dealing with these kinds of projects—as in Boston and Oakland—and who were very knowledgeable about this sort of thing, who were treated with contempt and dismissed as not knowing what they were talking about.
I was offended even then by the attitude of the City of Reno. Then the City of Reno itself went to the city, and there are a number of people here today to speak to the fact that they got a petition. Last session, I went before the Secretary of State and asked for some amendments to the statute dealing with petitions. I said if it was not going to be friendly to the people who participated in it, then let’s get rid of the petition process entirely. He agreed with me. We did make some changes last session that helped a lot, and I saw a bill draft today that Dean Heller has brought to you regarding petitions. I do not know what they do, but we certainly do not want to be like California, where they have dozens of them every election. On the other hand, the governments need to recognize the will of the people and respond accordingly.
I have copies of the opinion from the Legislative Counsel Bureau (Exhibit D). I served here for 16 years. This is the only time I have ever been so disappointed by our own legal staff in the Legislative Counsel Bureau, that they came up with this 18-page opinion as to why the people who got the petition in Reno were wrong.
Then the city decides to go to the Supreme Court. I have a copy of the Supreme Court decision (Exhibit E). Justice Cliff Young was the only one who voted against it. I have copies if anybody would like to review it. I thought his most telling statement was at the end, and I pointed that out to Ms. Cafferata, who is here speaking today.
This is not a partisan issue. We have Republicans, Democrats, and people from the Independent American Party who have been offended and disturbed by what the City of Reno has done to all of us as voters and taxpayers. But what Justice Young said in his last sentence was, “One thing, however, is certain: the old adage of ‘being railroaded’ may be aptly explained to the situation confronting the residents of Washoe County today.”
I do not know if you remember, but Mr. Anderson used to have a train whistle in chambers, and when he felt the bill had been railroaded, he would blow the whistle. I do not remember if he did it for this particular bill, but he should have.
Chairwoman Giunchigliani:
Old stories die hard.
Vivian Freeman:
Basically, that is what happened. I understand that you also have been sent faxes or e-mails from Mr. Mike Tracy, who is very involved in the petition process (Exhibit F). Some of the people who are sued by the City of Reno are here, and he was one of them. He said he is outraged that as a private citizen who went out and did all the hard work in getting the signatures and complying with all of the regulations, he ended up being sued by the City of Reno. It costs all of these folks a great deal of time and money to defend themselves in court. Far too often the City of Reno takes people to court. That’s not what our government is about. When people come to protest, they should not have to worry about being taken to court, hiring an expensive attorney, and going to Carson City or before the Supreme Court to defend themselves. That is the situation the people in Washoe County and Reno are facing, because this is funded by an eighth-of-a-cent sales tax and a lot of federal money, room taxes, a combination that you cannot believe, to pay for it.
The city council had all of the enabling legislation to pass ordinances to take care of this. They chose not to. They decided to ramrod it, not only through the Washoe County Commission, the Nevada Legislature, [but] anything that was necessary. Even the Supreme Court was convinced to go along with them. I have always had a great deal of respect for the Supreme Court and continue to do so. But I would hope for better decisions in the future that respect the needs and the concerns of the people who live in Nevada.
I also have quite a bit of history on this (Exhibit G). I am not going to burden you with it. It goes back probably ten years. Many people in Reno were opposed to it for very good reasons. They were ignored and dismissed. As a matter of fact, when I was out walking my district during the last campaign season, I found so many voters felt that what the city of Reno did was wrong, I had a flyer made up that said I would be introducing the bill, which you are hearing today, that would give people the right to petition their government and be heard and treated with respect (Exhibit H). They did not feel that happened.
As it turned out, I did not come back to the Legislature. I want to thank Mr. Anderson for introducing the bill. I felt that his testimony was eloquent and addressed the point very well. I would ask you to support this today. I think people in Reno, Carson City, and Douglas County will thank you.
Chairwoman Giunchigliani:
We do have a copy for the Committee of the Nevada Supreme Court decision for their perusal (Exhibit E).
William Puchert, Citizen:
[Introduced himself.] I urge you to pass this legislation to level the playing field for Nevada citizens who participate in a ballot referendum. I was one of 200 circulators of the infamous train trench petition. This was a very controversial project because of its impact to local small businesses, questionable financing, and a very dubious history in shutting the voters out of the process. During the 1997 Session, legislation was passed to allow counties to have a quarter-cent sales tax increase for public works projects.
In 1998, the Clark County Commission placed its tax increase on the ballot, and voters successfully passed the measure. That year, however, Washoe County took a very different route. A lame-duck county commission passed the sales tax increase that partially funded the trench project, fearing that incoming commissioners would vote it down. In fact, one of those lame duck commissioners was quoted in the Reno newspaper as saying, “The people were too stupid to make the decisions themselves.”
In the recent years that followed, there were several requests and attempts by the Reno City Council to put the project to a public vote, all seeming to fall on deaf ears. So a group of citizens got together to petition their city government to be able to vote on that issue. The people who circulated the petition included several senior citizens who stood for hours in cold weather collecting signatures, along with several small businesses that were concerned about their economic future.
After a lot of hard work from many dedicated people, we were able to collect more than 15,000 signatures, 6,000 more than we legally needed. I would respectfully ask this Committee to remember the number 15,035, because that was the number of citizens who were shut out of the process, along with other city voters who could not have a say. I am not here to argue the merits of the train trench project. For better or for worse, we have to live with it. What I ask you today is when citizens get together on a ballot referendum, whether you agree with the issue or not, that you allow them to have a say in the process. Thank you very much.
Vice Chairman Conklin:
Are there any questions from the Committee? [There were none.]
John Garvin, representing the Sustainable Growth Initiative Committee:
[Introduced himself and read from a prepared statement (Exhibit I).] I am speaking today in favor of A.B. 292 on behalf of the Sustainable Growth Initiative Committee, which is a citizens’ group whose efforts placed a slow growth measure on a Douglas County ballot last November. Let me briefly tell you our story as it relates to governmental action.
As a committee, we collected over 5,000 signatures in Douglas County to qualify the Sustainable Growth Initiative for the ballot, almost double the amount required. It was then challenged by a major developer, a private party, in Carson Valley prior to the election, who claimed that our slow growth measure was an administrative matter regarding zoning and was exclusively delegated to the county government, and therefore the voters could not use the initiative process to slow growth.
Our local county commissioners agreed with the developer, although Douglas County was a defendant in that action. Our district attorney aligned himself with the developer interest, so when we went to court as the Initiative Committee, we were alone in that battle. Our local court, relying on prior case law, agreed and removed the initiative from the ballot prior to the election.
Our committee then went to its public supporters and raised money to challenge that ruling. Raising money was no easy task. Nonetheless, we were very fortunate to obtain the services of counsel who agreed to work on this at a substantially reduced fee. Two days after we filed the petition with the Nevada Supreme Court, the initiative was ordered back on the ballot. The measure passed with over 8,800 votes in its favor. The Supreme Court later ruled that the initiative process was available to the people of this state to establish legislative policy in zoning matters.
Our battle is not over. After 11 developers and the local building association challenged the initiative ordinance on unconstitutional and other grounds, our committee had to intervene, at great expense, since the county and its district attorney continued to side with the developers. Thereafter, and despite our efforts, our local court issued a permanent injunction ruling the initiative measure null and void. Our committee is now in the process of going back to the Supreme Court for a final ruling. We are hopeful, if not confident, the voters will prevail.
Had this proposal, A.B. 292, been the law prior to the last election, our committee might have been spared the time and expense of going to the Supreme Court to vindicate the people’s right to express themselves at the ballot box. I say “might” because we are dealing with a private developer who sued us and sued the county. The county expended taxpayers’ money in fighting our initiative. I would think this bill would assist us in that event should it ever happen again.
It remains rather tyrannical for our local county officials to take measures to thwart the right of the people to use the initiative process to legislate—a right guaranteed under The Constitution of the State of Nevada. Article 19, Section 5 of The Constitution of the State of Nevada provides by law for procedures to facilitate, not impede, the operation of the initiative process. Assembly Bill 292, if passed, would be consistent with this constitutional requirement by facilitating the initiative process. Let the people vote without legal challenges other than those specified in the bill. Challenges on other grounds can wait until after the election.
Even though some initiative proposals might fail a legal test, voters expressing themselves served a very important purpose of keeping local legislators on their toes, of letting them hear from the people on important issues. The claim that voters will become disenchanted if, after having voted, the measure is struck down in court is a specious argument, without merit, in our democratic society. The only thing I would like to see in A.B. 292, if it were at all possible to consider in this context, is a broadening of the provision that would also prohibit private parties from challenging the initiative prior to an election. Thank you.
Chairwoman Giunchigliani:
Thank you, Mr. Garvin. We appreciate your testimony in writing, too (Exhibit I). I think we have had it passed out to the Committee members. So, [prohibiting] private parties from being able to challenge is your suggestion for us to consider?
John Garvin:
That’s correct. This bill only prohibits governmental action under taxpayers’ expense, but you have a wide-open “loophole,” so to speak, whereby private parties—in our case, developers in big real estate interests—can still maintain a lawsuit seeking to keep it off the ballot on the same grounds.
Chairwoman Giunchigliani:
We’ll look into that. I’m not sure if we’d run counter to their constitutional rights for free speech, and so forth, separate from the whole issue. But it’s an interesting thought.
John Garvin:
It basically defers, as your bill does, any action until after the election. So I would think the right of free speech is not abridged. It is simply deferred until after the process.
Chairwoman Giunchigliani:
A similar thing happened with the teachers’ petition regarding their tax increase that was struck down by the Supreme Court before it was held by this body, as well. There have been some unfortunate interventions that probably did silence the consideration of the voters.
To speed the process, if I call you in threes, if you’d just come to the table so it speeds it up a little bit, I would appreciate it. I did have Eileen Cohen, but you just signed in support, I believe. [Ms. Cohen replied in the affirmative.]
Martha Gould, Citizen:
[Introduced herself.] I am a 31-year resident of the City of Reno. In May of this year, I returned home from China, where I represented the U.S. government and was there as a guest of the Chinese government, to discover that my own city government was suing me. And why were they suing me? Because I had the unmitigated gall to be a signatory to an initiative petition. I sort of felt like maybe I hadn’t left Beijing. I consider the actions of the city of Reno to be unethical, immoral, interfering with my constitutional rights as a citizen, and I would sincerely hope that you would indeed support and pass A.B. 292. That is really all I have to say, unless you yourselves have ever had the fun of being sued by your own city for doing something that was actually legal.
Chairwoman Giunchigliani:
I think that was pretty succinct. Any questions? [There were none.]
Ralph Elvik, Citizen:
[Introduced himself.] I am a Douglas County resident. Madam Chairperson and Committee members, I have only a few words. I consider the initiative process to be a cherished right that we should have as citizens. I participated in obtaining signatures in getting the initiative in Douglas County on the ballot. It takes a lot of work, and you don’t do it for the fun of it. You do it because the situation is such that you feel that it needs something done about it. It not only includes the work of collecting the signatures, it includes the money for legal advice to get it on the ballot. Larger costs for us have been the legal actions taken before it got on the ballot and after it was passed. I would hope that this bill [A.B. 292] would protect our right to the initiative process and strengthen what’s on the books now.
Chairwoman Giunchigliani:
We have no questions. We appreciate your testimony.
Mike Hoffman, Citizen:
[Introduced himself.] I was one of the organizers of the petition to protect Fuji Park. In 2001, over 17 percent of the registered voters of Carson City signed a petition to protect the park. Elected city officials fought this petition from the start, all the way to the Nevada Supreme Court, taking it off the November 2002 ballot and away from the very voters who put them in office. In my view, A.B. 292 needs to be supported to allow the voters one of their most important platforms to speak and to bring change to government as supported by the First Amendment to The United States Constitution—the right to petition the government.
Assemblyman Conklin:
I have a question just for clarification. There are two actions that took place, if I’m to understand correctly. First of all, there was an initiative filed that was taken to court and struck down as unconstitutional. Correct?
Mike Hoffman:
It was first taken to the district court, which had held the petition under the Nevada Revised Statutes, which states if the correct number of signatures are collected and they are found valid, it shall go to the voters. That was where it was left. Then the city challenged that district court hearing to the Nevada Supreme Court, and it got into the argument of legislative and administrative, and they struck it down, similar to the train trench.
Assemblyman Conklin:
The next part of that question is, was there a subsequent suit that the city filed against the petitioners? Is that what I’m hearing?
Mike Hoffman:
Our group, the Concerned Citizens, had to take the city to court, because the city refused to put it on the ballot. They just totally ignored the petition, which is something they couldn’t do. It automatically goes to the ballot. Our group then took the city to district court to sue the clerk-recorder to put it on the ballot. That was held up in the district court. The city then sued the Concerned Citizens to Save Fuji Park, saying the language was wrong on the petition. Then they took it off the ballot.
Assemblyman Conklin:
Then when the Supreme Court took it off, they must have awarded the city attorney fees. Is that what I am to understand?
Mike Hoffman:
I believe they did not.
Assemblyman Conklin:
They did not. I think that answers my questions.
Chairwoman Giunchigliani:
Thank you very much for your testimony. The next group of three is Janine Hansen, Patti Cafferata, and Doug Smith. Lynn Chapman is just noting her support but does not wish to speak.
Janine Hansen, representing the Independent American Party:
[Introduced herself.] I have tremendous experience—far more than I wish I had—with petitioning over the years. Not only was I in charge of petitioning just a couple of years ago for 16 and 17 counties and organizing all of that, but I also served as the National Ballot Access Chairman for the U.S. Taxpayers Party in 1996 and was responsible for petitioning all over the nation. It’s a very difficult process to petition. It takes a tremendous amount of energy, volunteer work, time, and money to accomplish it. The one thing that’s important about it is that this is one of the only ways that citizens can express their opinions to a recalcitrant government, to a government that does not want to hear what they have to say. It’s a very important right.
In The Constitution of the State of Nevada in Article 1, Section 10, which you have heard referred to, it has a beautiful statement regarding this. It says, “The people shall have the right to freely assemble together and to consult for the common good.” That’s their responsibility, because this is a sovereign nation. The “sovereign” is actually the people. So we have that responsibility. “To instruct their representatives and to petition the Legislature for redress of grievances.”
This is an important bill. It’s always disconcerting when you find that your tax money is being used to thwart your efforts as a citizen. They have unlimited coffers, and you’re paying for it out of your pocket. It’s a real difficult circumstance that doesn’t only occur with this particular issue, but with some others. I encourage you to pass this to protect the right of citizens to freely petition their government. Thank you.
Patti Cafferata, Citizen:
[Introduced herself.] For those of you that don’t know me, I’m a former Assemblywoman, former State Treasurer, and former District Attorney of Lincoln, Lander, and Esmeralda Counties. I guess that makes me a real “has‑been.” But I do represent people in the initiative petition process, in the recall process, and in referendum processes.
I represented the people in White Pine County in 1994 when they repealed a landfill fee bill. I represented the people in Douglas County in 1994, the same year, when they were doing their landfills. They had four questions on the ballot. Last year I represented the people for the train trench, and I represented the people in Douglas County that Mr. Garvin just talked about.
First, let’s start with what the difference is between an initiative and a referendum. I never knew what the difference was until I became a lawyer and started practicing law. An initiative proposes new law, just like you propose laws or statutes. A referendum repeals a law that is on the books. And recalls, of course, are for getting rid of corrupt officials.
The initiative rights were added to The Constitution of the State of Nevada in 1912. It’s in Article 19, Section 2. There have been amendments, and there are other sections. One at Section 4 gives the rights to local governments, and that was added to the The Constitution of the State of Nevada in 1962. Basically, what it says is the people reserve to themselves the right to propose laws or statutes, and to propose amendments to statutes and amendments to The Constitution of the State of Nevada.
I think you are all aware that more and more initiative petitions are being passed and proposed every single election year across this country. Part of it is because of the frustrations with government. People don’t feel like they have a role. When they try to do things, their local officials put them down.
The process is a very difficult one. You have to collect signatures of 10 percent of the voters—if you’re doing a statewide one—in 13 of the 17 counties. If you’re doing a local initiative, then you have to have 15 percent of the voters’ signatures of those people who voted in the last election. This is no small feat. You’ve seen those people out at the grocery store. Some of you have probably even collected signatures. The Chairman is nodding her head. It is a very difficult, time-consuming process, and there are all kinds of restraints that are put on the citizens who are doing this. There are specific requirements about what the form should look like, and if you don’t get that right and collect the signatures right, you’re going to get them thrown out in court. It is simply not an easy task. This is not some “Joe Blow” who is mad at the local mayor and runs down and gets a bunch of signatures. It doesn’t work that way. It takes a lot of people to qualify a question for the ballot. If you are successful in getting the signatures, hopefully you get it on the ballot, and then most of them are voted down. The people look at them and don’t agree.
The problem is when they get legally challenged before they even get to the vote, and that’s what A.B. 292 addresses. In the most recent cases in northern Nevada, you’ve heard about some of these. And I think your question was very enlightening in that this issue is very confusing.
The Fuji Park case, the train trench case, and the Douglas County cases all were procedurally different. I’ll try and sort them out for you. With the Fuji Park petition, the district court judge said, “Yes, it goes on the ballot.” Then the city took the case to the Supreme Court and that’s when it got knocked off the ballot.
The train trench petitioners actually sued the city on a bond issue, which was not related to the initiative petition. That was the initial thing. Then we – the citizens that I am representing – got sued by most of the casinos in downtown Reno, and they brought in the city. The district attorney also came in. The district attorney took a very neutral position and said, “This is when the election is. This is how many signatures you had to have. This is when we have to print the ballots.” That was all the district attorney did. The city attorney was very aggressive in defending the suit and helping—they might as well have been on the same side as the casinos, helping them. We lost in district court. Then we appealed to the Supreme Court, and we lost there.
In Douglas County, we were sued by a developer. When we lost in district court, we took it to the Supreme Court. But meanwhile, the district attorney in Douglas County, Scott Doyle—probably one of the finest district attorneys in the state, very good, very bright, very aggressive—he practically got into bed with the developers and helped get all the research done and everything. This was all done on county time. We went to the Supreme Court. The Supreme Court said, “Put it on the ballot.” It went on the ballot, people voted, and it passed. And now they’ve sued again, and that’s a whole other issue, which this bill doesn’t address, and we’re not interested in.
What we’re interested in is getting a vote.
Chairwoman Giunchigliani:
I was looking at Section 1. It says, “The government of this state or a political subdivision shall not incur an expense or make an expenditure to support or oppose a ballot question or candidate.” It seems to me that the line was being crossed even as far as using public tax dollars for the purposes of defeating or supporting a ballot. Has anybody addressed that, or did any of the cases look into that?
Patti Cafferata:
I believe it was addressed. I made this argument, used this section of the law—the one that is the law right now—in the train trench case. And the Supreme Court in the Fuji Park case came down and said, “Well, the Legislature didn’t mean that. They didn’t mean you couldn’t do legal things. It meant you just couldn’t buy advertising.” So that does not address this at all. There is a section in NRS Chapter 294A that talks about expenditures. The Supreme Court said, “Legal expenditures don’t count.” If you want to make sure that they can’t spend county time and dollars on legal things, then you’re going to have to address that.
Chairwoman Giunchigliani:
No matter what happens, we probably ought to look at the current language to make it very clear. If we had meant advertising, we would have said advertising.
Patti Cafferata:
If you look in NRS Chapter 294A, whatever it is, it says, “or any other expenditure to oppose or support.”
Chairwoman Giunchigliani:
Did they file as a PAC (political action committee)? Just kidding.
Patti Cafferata:
I’m going to talk about that in a minute. The position the people are in right now is, suppose the Legislature was proposing to pass a bill—which you are—and the Attorney General decides to do a little research, then takes you to court and stops you from passing the bill. That’s exactly the same position that the people are in at this point. The Attorney General can’t do that to you, because the Attorney General doesn’t have that power. That’s what is happening to the citizens at the local level.
If there is a problem with a proposed initiative, like the train trench—if you believe the Supreme Court was right, it can be challenged after the bill is passed, if it gets passed. Look at all of the initiative petitions that were out there that got killed this last time. The voters aren’t stupid. They’re smart enough to figure this stuff out. I would add here in subsection 2, “The government of a political subdivision shall not commence legal action.” I think you want to add, “or any other entity.” The time is to get the vote.
Chairwoman Giunchigliani:
That was similar to what Mr. Garvin was recommending, then.
Patti Cafferata:
The time is afterwards. The other thing that isn’t here, but I would suggest that you look at, is that you could amend the legislation to permit people who circulate initiative petitions to collect their legal fees if they prevail in court. It’s like a private Attorney General action, like under the Open Meeting Law. Citizens can file for violations under the Open Meeting Law and collect legal fees. It would be the same kind of thing. We’re talking about only if they prevail. Right now, they can’t do that.
What I might add is that this is all very bipartisan. I love it. We have Vivian Freeman up here, who’s a Democrat; Patti Cafferata, who’s a Republican; Janine Hansen, who’s American Independent Party. It touches all of us. It is not a partisan issue.
But these citizens circulate these groups and have no real source of income, such as a business or a government has. Every time they want to defend these things in court, they have to pass the hat. If it weren’t for lawyers like myself who are willing and have the wherewithal to donate most of their time, they wouldn’t be in court. They may collect all the signatures, and then they’re out. Over $100,000 in legal fees were spent on the train trench case. I did not collect but a very small part of that. That’s okay. But most of the corporations that opposed it didn’t even have to disclose. The law does not require them to disclose the amount of money they spent. That’s NRS 294A.0055. Corporations are exempt from reporting, because they didn’t work together, they just had all these casinos. Some have gotten together, but not in tandem, and sued. The only reason the circulators had any representation was because I was willing to do it. But it’s not just my fees. It’s the court reporter fees; it’s the filing fees. Those were in excess of $5,000. I would hope that you would consider that if one is successful, one could recover the legal fees.
In Douglas County, the same thing occurred. I don’t think that their legal expenses, up to the point that they got it on the ballot, exceeded what happened in the train trench case. They are now well beyond that because of the pending lawsuits.
It’s a constitutional right. The citizens should not have to defend themselves in court just for merely circulating an initiative petition. I urge you to pass A.B. 292. I try not to get into the particulars of the petitions, but the train trench case, people have been opposed to it since the 1930s. It was actually on the ballot in 1980, I think, and it was defeated. They have never wanted it, and yet they are powerless. I would be happy to answer any questions. Thank you for your time.
Chairwoman Giunchigliani:
Are there any questions from the Committee? [There were none.] Excellent job, as always. It’s good to see you again.
Doug Smith, representing Scenic Nevada:
[Introduced himself and presented a letter (Exhibit J).] We are a nonprofit, nonpartisan organization that works to preserve, protect, and enhance the scenic character of Nevada. We definitely support A.B. 292. I also spent some time out on the lines with the petition for the train trench.
I’d like to take you through a bit of a history as to how we are a little different. In March of 2000, we came up with an initiative petition, which stated, “Off-premise advertising displays/billboards in Reno are prohibited, and the City of Reno may not issue permits for their construction.” About that same time, the billboard industry filed a dueling petition. They just modified the words a little. There should be something in A.B. 292 for when a person with a scheme or device just changes the wording [somewhat]. It has people confused. I think that’s one thing to address. Dueling petitions are certainly a bad part of that.
We then went to a dueling petition after that. Of course, another thing that happened before we got it on the ballot, the billboard industry sued us in district court to keep it off the ballot. Judge Polaha ruled in our favor. It was then out for the people to vote. We beat it by 57 to 43 percent. The people said they wanted no new billboards in Reno. We’re feeling fat and happy, and all of a sudden we’re in the Supreme Court. The billboard industry sued us and took us to the Supreme Court, trying to invalidate Judge Polaha’s decision. The Supreme Court ruled in our favor, and we felt again that we had finally made it. Shortly thereafter, the billboard industry asked the Supreme Court to rehear it. They asked the same people that made the decision, “Now, are you sure you did it right? Maybe you didn’t do it just right. Maybe you want to reconsider.” [The Court] ruled in their favor.
What I’m trying to say here is that this is a little different route, but again it’s the same type of thing—you’re being sued. The billboard industry spent $257,000 beating us. They hired one of the top public relations firms in the state of Nevada. We spent $3,000. Again, sometimes the people know what’s right and what’s wrong, even though you can try to tell them 5,000 jobs are going to be done away with and all these other things. If big lies are repeated enough times, pretty soon you hope enough people will believe it. There are honest people out there, intelligent people, and they make a decision.
I definitely support A.B. 292, and I would agree with all of the suggestions that were made. I think you need to adjust to dueling petitions. Again, that’s a bad one. That one there is just meant to confuse, that’s all it is. By the way, they withdrew it after a while, and used some flimsy little excuse. The public relations person wrote it, something to the effect of, “Well, we didn’t want to confuse people.” That’s what it was written for. Don’t kid us. So thank you very much for your time. Please support A.B. 292.
Chairwoman Giunchigliani:
Thank you very much for your testimony. We’ll look at the initiative order. I have a bill that has one little section that deals with cleaning that up, so maybe there might be a place there.
I will note that Donna and Robert Rose signed in support. Anybody else that wants to come up that maybe didn’t sign in, please feel free to come up.
Mike Robinson, Citizen:
[Introduced himself.] I’m a Reno citizen. I am also a member of Washoe County’s Organizational affecting this Committee, but I’m here today speaking just for myself and not for that committee. As one of the five people that got sued as one filers of the petition, I want to thank Patti Cafferata for her very reasonable fees on representing us. I have passed out, I think, to all of you some of my comments today (Exhibit K).
The citizens’ petition to prevent the train trench project was challenged by Reno management, and the Nevada Supreme Court nullified the citizens’ successful petition process. This Legislature can now act to plug the loopholes in the existing law. When a petition is certified, the public must be allowed to express their opinion at the polls for at least two reasons. One, local governments need to know the public’s wishes even if they intend to ignore those wishes. Two, the vote creates a record, and that is the first step in establishing accountability for actions.
Legal action taken by the city of Reno and also by Harrah’s, the Eldorado, Circus Circus, and the Silver Legacy, along with the Reno-Sparks Chamber of Commerce Political Action Committee, was very costly to the Committee for a Public Train Trench Vote, a citizens’ group who only wanted to allow the public a vote on the largest public works project ever in northern Nevada. I would ask that you consider adding to A.B. 292 a provision for the awarding of attorney’s fees when citizen petition groups are sued unsuccessfully, as it is quite costly to be in court today.
In 1980, the public defeated a project similar to ReTRAC (Reno Transportation Rail Access Corridor) by a vote of 2 to 1. It is my opinion that a concerted effort was initiated sometime in the late 1980s or early 1990s to ram this project through without a vote of the public. That is exactly what happened. The 1997 Legislature passed a bill allowing for a sales tax increase to fund projects in Washoe and Clark counties. The bill allowed for a public vote to approve the tax increase. Unfortunately, the bill also allowed for a supermajority of the county commission to approve the tax increase without a public vote. Clark County taxpayers were allowed to approve their sales tax increase, but the taxpayers of Washoe County were denied that opportunity. The supermajority loophole is, in my opinion, bad legislation. I think you always need to have the public vote on tax increases such as that, no supermajorities at all.
Pleadings during the ReTRAC petition trial in District Court included statements made to the Nevada Legislature from Stuart Schillinger, who was at that time the Reno Budget Manager. Reading of his testimony revealed that Mr. Schillinger had misrepresented to the Nevada Legislature the value of the Union Pacific properties as being assessed at about $8 million, and therefore would have an appraised value of around $25 million. This is incorrect, as the properties had an assessed value of approximately $3 million, and therefore an appraised value of $9 million. Mr. Schillinger’s overstatement by $16 million was most important because the legislation for the sales tax and the ReTRAC project required 50 percent funding from other sources.
That is not the only time Reno management has misrepresented the facts to the state Legislature. During hearings for S.B. 221 [of the Seventy-First Session] for Reno’s downtown events center, members of the stakeholders group, a group enabled by previous legislation, gave testimony. This testimony, in answer to questions from some of you, misleadingly indicated that the project was a public/private partnership with the downtown hotel casinos investing $20 million. It was also represented that the events center would not compete with the main convention facility. Both representations proved to be false when the hotel casinos pocketed their $20 million with the city of Reno backing the bonds with their general fund, and today, even before ground is broken, there is competition between the convention center and the downtown events center.
The public will is often defeated by organized, well-funded, special interests. A.B. 292 will help guarantee that the public’s voice is heard. By including the potential for legal costs, you could improve the public’s interest even more.
Chairwoman Giunchigliani:
Thank you very much, Mr. Robinson. Excellent job.
Laura Mijanovich, representing the American Civil Liberties Union (ACLU):
[Introduced herself and presented written testimony (Exhibit L).] I’m here to support A.B. 292. This is a good bill, an important bill, as was said before. It assures the exercise of the people’s right to petition, which is a constitutional right. Let’s not forget that. It is certainly not good to allow local governments to challenge initiatives or referendums because they go against their policies.
We at the ACLU have a caveat, however. There are exceptions provided under the bill, three instances of procedural matters. It’s our belief that if there are procedural flaws, it should be up to the Office of the Attorney General, and not to local government, to challenge them before the cutoff date. That is our suggestion.
Chairwoman Giunchigliani:
We’ll take that into consideration.
Jim Slade, Citizen:
[Introduced himself and presented written testimony (Exhibit M).] I am speaking today in favor of A.B. 292. Along with Mr. Garvin, I speak on behalf of the Douglas County Sustainable Growth Initiative Committee, although I have some different points to make. I also feel that to some degree I speak for the more than 5,000 voters who signed our petition last year, which was a record in Douglas County, and for the more than 8,800 people who voted in favor of our initiative last November when it passed.
When we started the initiative process more than a year before the election, we had excellent legal counsel on how to go about the process. Thank you, Patti. Our attorney was very much aware of the laws of Nevada and judicial opinions regarding initiatives. She advised us quite clearly on the need for our initiative to be legislative rather than administrative, and we purposefully followed her suggestions in that regard. When we wrote our initiative, we were quite convinced that it was clearly legislative, and that the administration of the initiative would be up to the county.
We followed all the legal requirements for an initiative. Our community volunteers spent countless hours collecting the required signatures at various venues throughout Douglas County. It was a great lesson in grassroots democracy, and we felt good about educating the public and giving them a chance to vote on the future of Douglas County.
Nonetheless, our initiative was challenged in court pre-election by a developer with the concurrence of the Douglas County District Attorney, who claimed that it was unconstitutional because it was administrative rather than legislative. Our local district court judge agreed and ruled that our initiative should not be on the ballot. This is how it would have stood, and the citizens of Douglas County would have been denied the opportunity to vote on this important measure, except that the Nevada Supreme Court agreed to hear our case on an expedited basis, overturned our local judge, and ordered the initiative back on the ballot. Subsequently, post-election, the Supreme Court ruled that our initiative was, in fact, legislative rather than administrative, and hence deserved to be on the ballot.
The point is this: If learned men such as judges cannot agree on whether an initiative is legislative or administrative, how can the public possibly be expected to discern this not-so-bright line? If people follow the legal procedures for an initiative in good faith, the voters should have the opportunity to vote on the measure. If, post-election, the measure is ruled to be administrative or otherwise unconstitutional, then the governing body can treat the vote as advisory only.
It is bad enough that those with deep pockets, whether they be a government body or private entity who are often motivated solely by profits, can drag grassroots groups, such as ours that depend on citizen donations, into court repeatedly. Citizens deserve the right to vote on these matters that are legally qualified for the ballot. To do otherwise is undemocratic. People are always decrying low voter turnout. To not allow citizens to vote on a legally qualified initiative would discourage voter participation and would lead to further disenchantment with our government.
I thank Assemblyman Anderson for bringing this bill forward. Like others before me, I would urge you to consider amending the bill to prohibit legal challenges to a qualified initiative petition by either a governmental body or a private party until after the election. Either way, however, I urge you to support A.B. 292.
Chairwoman Giunchigliani:
We appreciate your testimony. That is all I had signed in support. We’re going to move to the opposition at this time.
Randall Edwards, Chief Deputy City Attorney, City of Reno:
[Introduced himself.] It’s always encouraging to have as my opposition the American Independent Party, the Democratic Party, the Republican Party, and the ACLU. I really do appreciate the fan club for showing up today.
I was the attorney who handled the ReTRAC case, and I came here prepared to talk about some of the principles that are at stake with regard to the proposed legislation. I’d like to talk a little bit about how the ReTRAC case came up.
As has been indicated, the question of whether there should be a train trench through Reno has been a matter of public discussion for several years. At the time of this petition, we had a deeply divided city council: 4 in favor of the trench, 3 adamantly opposed. The Citizens for a Public Train Trench Vote and others went out on the streets and got an initiative petition and got sufficient signatures. They did an excellent job in organizing and submitted it to the city clerk. The city clerk then took the initiative petition to our city council where it was certified that there were sufficient signatures.
It was at that point that our office got into the act. We looked over the petition and came to the conclusion that the language of the petition was clearly unconstitutional. We made a determination that it was clearly unconstitutional. I asked the council what we should do. They said, “Go to court and figure out what we should do.” Meanwhile, we were sued by the citizens’ group and, in response, we filed a counterclaim challenging the constitutionality. It was placed before the court, and the court made the determination that it was unconstitutional. The citizens’ group appealed to the Supreme Court. The Supreme Court agreed that it was unconstitutional.
Our involvement in the case had to do with responding to a lawsuit that was brought against the city. Now, had there not been the lawsuit, I must be honest and say that we probably would have gone forward and challenged it as the plaintiffs in the case.
There were principles involved that we argued to the Court that I think should be taken into consideration. The first principle that we looked at is, “What public good can come from submitting an unconstitutional initiative petition to the people for a vote?” We looked over what the Supreme Court had said, and there is a long history of cases in that regard. As far back as 1913 there was a case in which a fellow wanted to open up his restaurant and bar on the island where Wingfield Park is in the middle of the Truckee River in Reno. The Reno City Council said, “No, you can’t have a liquor license.” The fellow went out and got an initiative petition from the people in Reno who wanted to have a bar there and submitted it to the city council. The city council said, “It’s unconstitutional for you to tell us who we should be giving liquor licenses to and who we should not.” At that point it went to the Supreme Court, which made the determination that yes, indeed, if an initiative petition is illegal, if it is unconstitutional, no public good comes about by submitting it to the voters. That has been affirmed over and over by our Supreme Court.
In the Fuji Park case, it was again affirmed. The court said, “There is little value in putting the measure before the people that they have no power to enact.” I don’t necessarily want to talk about the ReTRAC case, because these issues and principles are bigger than the ReTRAC case. But in the ReTRAC case, it was clearly unconstitutional.
The courts have said that the government not only has the right, but it has the duty to protect its citizens from unconstitutional measures when they are placed before them, and that actual public harm arises when an unconstitutional measure is submitted to the voters. That’s come up time and time again, and I’m not going to make the same argument that I made to the Supreme Court. But A.B. 292 would take away the government’s ability to protect its citizens from unconstitutional measures going to a ballot. We believe that that’s not only bad public policy, but that is unconstitutional per se. As it is written, A.B. 292 would also take away the ability of government to even defend itself in a lawsuit, which is the situation that we had with the ReTRAC case. It isn’t just to initiate a lawsuit, but also to engage in any legal action. We also believe that that takes away government’s very important rights. I’ll sum up in any questions that you have.
Vice Chairman Conklin:
I’m going to be brief. I have only one question. Mr. Edwards, where does The Constitution of the State of Nevada and The Constitution of the United States derive their authority?
Randall Edwards:
Ultimately, from the people.
Vice Chairman Conklin:
Thank you.
Assemblyman Anderson:
Mr. Edwards, I’m a bit concerned, because you alluded to a couple of cases, and I’m not sure which cases you’re talking about. In the 1913 incident, this would be during the Progressive Era, so this would have been during the time period when the initiative referendum concept was a hot topic issue. Was the initiative directed to the city of Reno, that you made reference to, relative to the will of the people of Reno to their city government requesting them to change their ruling on a matter in front of them?
Randall Edwards:
Yes.
Assemblyman Anderson:
Or was it to the state Legislature? I’m trying to figure out who they were petitioning to make that body aware of their rights.
Randall Edwards:
The petition was to change an ordinance of the Reno City Council.
Assemblyman Anderson:
They were directing the city to change? Were they rewriting the city ordinance?
Randall Edwards:
Yes.
Assemblyman Anderson:
Or were they petitioning the city of Reno to change their ordinance?
Randall Edwards:
No. They were rewriting the city ordinance to require that a particular business be given a liquor license.
Assemblyman Anderson:
The city challenged it [because] that wasn’t the purpose of initiative petitions?
Randall Edwards:
That it was illegal, that it was unconstitutional. That the question of who to give a liquor license to and who not to is an administrative decision that is in the executive branch of government as opposed to a legislative decision.
Assemblyman Anderson:
The court cases that you cite that are on point that you don’t want to go into…
Randall Edwards:
I can go into them if you’ve got the time.
Assemblyman Anderson:
No. I’d like the citations, however.
Randall Edwards:
Sure.
Assemblyman Beers:
What was unconstitutional?
Randall Edwards:
In the ReTRAC petition? [Mr. Beers answered in the affirmative] It was an administrative decision. It’s generally the same issue every time that it comes up. The wording of the initiative petition was such that it stated that—at one time, I could have rattled it off at any time. Essentially, it said that the City of Reno shall not construct a depressed train trench in the Union Pacific right‑of‑way. It said exactly what we could not do, and exactly where we could not do it. It was not a matter of broad legislative policy. It was, at that point, an administrative decision mandating to the city exactly what it couldn’t do and exactly where it couldn’t do it.
Assemblyman Beers:
I guess I strongly disagree. The role of the executive branch is to execute what the legislative branch tells it to do. We have plenty of laws on our books that are very specific about what is to be done by the executive branch. Is that the only issue of constitutionality that was, as I understand it, rejected by the district court but accepted by the Supreme Court?
Randall Edwards:
No, it was accepted by the district court and then appealed by the Citizens for a Public Train Trench Vote and again accepted by the Supreme Court.
Assemblyman Beers:
So the argument is, the legislative branch has no business telling the executive branch what to do in that level of detail?
Randall Edwards:
Well, essentially. Let me give you an analogy. Let’s suppose there was an initiative petition—and I’m going to a ridiculous length here to make a point, there would not be one. Let’s suppose there was an initiative petition that were to say the city cannot fill potholes on Virginia Street between First and Second Street. Granted, that’s not going to happen. But the question is, is that an administrative action or is that something that is subject to legislative—the people? We argue that it is an administrative determination as to how we’re going to use our city resources under those circumstances. It is the same principle in telling the city what they cannot do and where they cannot do it with regard to this depressed train line.
Assemblyman Beers:
Has this line of legal reasoning ever been used in other states?
Randall Edwards:
Yes.
Assemblyman Beers:
Is this the rule of law in 50 states?
Randall Edwards:
I don’t know if I’d say 50 states, because I didn’t look at all 50 states. I know that it is the rule of law in the majority of states in which we have had initiative petitions that have been challenged. Obviously, you have different statutes in different states with regard to these types of issues. When I was preparing my briefs, I looked specifically toward the question of public works projects as opposed to anything that might come up within initiative petitions. California, of course, is a rich source of initiative petitions and, depending upon which way the wind happens to be blowing at any given time, there may be a whole different set of precedents. But generally that is the law, that is where you get to administrative determinations, that is a matter that is outside the purview of the initiative petition process.
Assemblyman Beers:
And if you accept that line of legal reasoning, then the line beyond which you’ve crossed into unconstitutional meddling, if you will, or legislative instruction, is gray?
Randall Edwards:
I would have to say that there is no bright line. In coming before you today, I certainly don’t mean to imply that those people who went out in the rain and the snow and the sleet to get the signatures were obviously acting unconstitutionally. I believe that they probably believed that what they were doing was constitutional and was right. I don’t know necessarily that they had the benefit of knowledge of the constitutional process. But it’s a gray line.
Vice Chairman Conklin:
Are there any other questions for Mr. Edwards? I must admit, Mr. Edwards, I find something fundamentally, philosophically flawed from this standpoint. That our constitutions admittedly derive their power from the people, and yet while we can strike down laws in the Supreme Court or the Legislature, I find it difficult to understand how a constitution, deriving its power from the people, can give the power to government to strike down future laws of the people, directly of the people, as unconstitutional, for which the people have given the constitution its power to serve in the first place. There’s a flaw here.
Randall Edwards:
May I respond? I understand the point you’re making. Let me again use an example that I don’t believe would ever come into play, but in which the principles would apply.
Let’s suppose that there were an initiative petition that had sufficient signatures that said that we believe that people of color should not be allowed to own property in the city of Reno. This would obviously be unconstitutional, despite the fact that it may have the approbation of the majority of people, we the people who signed The Constitution of the State of Nevada. Should the government be able to have that matter struck down before it goes to the people for a vote when, if it does, it obviously cannot be enacted? The answer, of course, has been under circumstances where something is plainly unconstitutional, it can and should be struck down before it goes to a public vote.
Vice Chairman Conklin:
I think we would also agree that people have the right to voice their opinion under the First Amendment to The United States Constitution, and part of that is to have their day in the Legislature, have their day through initiative, and in the final analysis, the Supreme Court can rule on that. I think that’s the purpose of this bill.
Are there any other questions for Mr. Edwards?
Assemblyman Anderson:
I guess you dangled one in front of me, Mr. Edwards, and I have a difficult time not coming out of the water to get it. Both in the illustration that you used with the potholes and the allocation of dollars to fix the potholes, if the public, looking at the overall needs of the community, determined that there were greater needs in the community, or felt there was a greater need in the community than the fixing of the potholes on the street, and the city fathers determined that they wanted to use the meager resources of the city to fix the potholes, what avenue of redress should the people use to demonstrate to the city their intent not to have the public funds used in such a fashion? And you’re going to tell me, I believe, they should come to the city council and demonstrate their distrust or distaste for the use of the dollars to be spent in that fashion.
Randall Edwards:
That would be one method. The other would be to actually simply put together a constitutional initiative petition that would enact broad legislative policy. One of the issues that I questioned in this case—
Assemblyman Anderson:
Do you believe the city can only be hampered by constitutional policy that would come from this body because you’re a chartered city, and we give you power?
Randall Edwards:
Had the initiative petition that came forth in ReTRAC been obviously constitutional, we would have been bound by it.
Assemblyman Anderson:
So if I say, “I don’t want you to spend my dollars this way,” and I go out and I get the proper number of signatures in my community, to whom should I present the petition? Validly, I should present it to the registrar to put on the ballot, right?
Randall Edwards:
Yes.
Assemblyman Anderson:
Now I put it fairly in front of the people for you to pay attention to. Then you have the opportunity, afterwards, if you find a flaw. I don’t believe you have the opportunity before the vote has taken place. I think that’s what the argument is here. It’s about [whether] the vote [took] place, and the public will be known.
Randall Edwards:
One of the questions that I considered was, since it appeared that the ReTRAC petition was unconstitutional, is there a way that an initiative petition that was constitutional could have been drafted? And the answer was obviously yes. Had it dealt with broad legislative policy, had it said something along the lines of, “There shall be no public expenditure for a public works project in excess of $25 million without a vote of the people confirming such,” that would have been, in my opinion, adequate, because it would have been clearly legislative. It is when you get into the minute administration of the policy that you start to get into the area of executive.
Assemblyman Anderson:
So then your argument would be that it would be all right for them to say, “No, you can’t fix the potholes,” but it would not be all right for [them] to say, “You can’t fix the potholes on Sierra Street.”
Randall Edwards:
I’m not sure I’m ready to draft legislation off the top of my head, but the further away you get from the precise administration of public policy and the more into legislative policy, the more likely you are to pass constitutional muster.
Assemblyman Anderson:
I guess we can go around on this issue forever. It just seems that the train trench is a specific thing that they were trying to show their distaste for, and therefore I don’t think the total sum dollars was questioned, but rather the outlay to what its purpose was, which was the building of the trench. That was the issue that they wished to get in front of the public. And that’s too bad.
Vice Chairman Conklin:
Mr. Edwards, I’m going to have to cut you off. I don’t mean to be rude. This is an elected body, and we’ll have a fair hearing in here, and there won’t be any railroading. But I really must move on to the next gentleman in line.
Andrew List, representing the Nevada Association of Counties:
[Introduced himself.] We oppose this bill as currently written for a few reasons, and I will keep this quick. First of all, I have the utmost respect for the initiative process and so do the elected officials that I work with. I respect those folks who go out there in all sorts of weather, all times of the day, collecting those petitions. I have actually collected signatures myself, and I have signed petitions myself. So I know the process fairly well.
But I do believe, and our elected officials that I represent believe, that there are subject matters that do not belong on a ballot, and those are matters that, as previously stated, are clearly unconstitutional or will result in an unconstitutional bill or piece of legislation.
There are a couple reasons I think these don’t belong on the ballot. The first is that if a matter is clearly illegal or unconstitutional, the counties and the clerks and the election officials should not have to take the time to prepare the ballots and go through the process and expend the public funds to put those matters on the ballot if they clearly don’t belong there.
The second reason is that if you have something on the ballot that is unconstitutional or improper and it is going to be struck down later, you’re setting the voters up. They are going to have an unfulfilled expectation. If they voted for this, they expect it to happen, not to have it struck down later by the court. I think that clearly there is a public interest and a public good being served if the item on the ballot is determined to be constitutional and legal prior to having that item on the ballot. I think that serves the voters, people, and the public better.
Finally, I think that if this bill were passed, you could end up with a lot of different initiative petitions on the ballots, a lot of which might just be downright silly, for lack of a better word. I think if you want to protect the integrity of the initiative process that these people work for, I think that it’s a better idea to have the legality of those items determined prior to them being placed on the ballot. Thank you, and I’ll answer any questions that you may have.
Vice Chairman Conklin:
Mr. List, I have another curious question for you. Let’s suppose you didn’t oppose this and it didn’t go to the court and you let that ballot initiative on the ballot and it wins with overwhelming support. Let’s say 70 percent of the people say, “It’s a no-go, we’re through.” Are you telling me that after 70 percent of the people in your city say, “This is a no-go,” that you’re going to turn around and mark it as unconstitutional and move forward with it anyways? It’s a yes or no question. That’s all that’s required here.
Andrew List:
Assemblyman Conklin, I think that if 70 percent of the people voted for something and said, “This is a no-go,” but it’s still unconstitutional, I would hope that the court—
Vice Chairman Conklin:
Wait, wait, wait, wait. How’s it unconstitutional?
Andrew List:
Let’s say, for example, the initiative is that in Lincoln County we’re going to have a lottery. And the lottery gets on the ballot. The people vote for it. They’re going to have a lottery, and the money is going to go for a public swimming pool. They’re excited. Eighty percent of the people vote for it. Their expectations are going to be unfulfilled, because a lottery is clearly unconstitutional.
Vice Chairman Conklin:
Okay. But we’re talking about administrative code that was written by the city. The city has an option to rewrite that. Are you telling me the city, as it stands now, is not interested in hearing the will of the people?
Andrew List:
That is not what I’m saying. I think that the city and the elected officials that I work with are interested in hearing the voice of the people. I’m just saying that if these items are unconstitutional, they don’t belong on the ballot. I think my testimony is clear on that. Thank you.
Michael Pennington, representing the Reno-Sparks Chamber of Commerce:
[Introduced himself.] We’re here today to stand in opposition to A.B. 292. The reason for that is we believe that government needs to take the action to respond to clarify various questions that arise throughout the process. We believe that this makes an effective and efficient government process, and that these issues should and must be resolved prior to Election Day for the matters that the previous speakers have brought forward.
We, too, believe that the public has a right to address the way that government works. We believe that citizen activism is exceedingly important, but we believe that these issues must be addressed in a proper and legal method. We also believe that there’s the right to challenge, as well, and that is done throughout the process. If something is found to be questionable, that challenge should exist. We also believe that it is prudent for government to consider the costs associated with those measures and that legal cost considerations be brought forward as well.
Kimberly McDonald, representing the City of North Las Vegas:
[Introduced herself.] I would like to relay our apologies. Our city attorney, John McGowan, would have liked to have been here. In fact, he’s en route, but his plane is delayed. He definitely would have liked to have spoken to this issue. We do support the City of Reno’s proposed amendment (Exhibit N). We also support participative government. We very strongly encourage the public to be a part of the process, and we believe that there is a definite role for initiative petitions. There’s a role for the public to have a voice as well. However, we are very concerned about the prohibition of political subdivisions having the ability to challenge these initiative petitions.
We recently dealt with this issue in which a judge ruled in the city’s favor, but one of our citizens’ groups actually developed a petition that largely dealt with administrative issues and not legislative issues. That, I believe, took place on February 7 of this year. I’ve also provided copies of news articles (Exhibit O). There are two for you to peruse, and this summarizes the case as well.
We also believe that the city council has been elected to handle such administrative issues. They can do that themselves or by assigning such duties through their city management. Therefore, we have such concerns. We feel that when there are constitutional questions such as this and we need clarification, we should go to the court. That is our position on A.B. 292.
Renee Parker, Chief Deputy Secretary of State:
[Introduced herself.] We’re certainly in favor of any legislation that makes the initiative petition process more accessible to the voters, and we wholeheartedly support that process.
I had a couple of concerns I wanted to bring to your attention that you may want to have your legal counsel look at. Section 1, subsection 2, does prohibit any other action to challenge an initiative petition, a referendum, or a recall, other than a court action. I realize it excepts out actions where the petition was prepared in a manner that was procedurally incorrect. I would just suggest that maybe that also be extended to say, “or in violation of Title 24.” I’m thinking of the instances where the county clerks are required to verify the signatures. Not the count for the signatures, but the verification. They compare the signature on the voter registration application to the signature on the petition. If those signatures don’t match and look fraudulent, they may submit [the petition] to our Office to look at. So that would be taking an action that would potentially challenge the petition. I don’t think that defeats the purpose of those types of actions being dealt with after the vote for the citizens. So I ask that you look at that and consider extending it to other actions or violations of Title 24 so the county clerks can transmit to our office under Title 24.
My other concern with respect to that section is that whether “prohibited from initiating an action, taking an action, or another action to challenge” may prohibit them from defending a lawsuit where they are named. I don’t know if that was the intent of the legislation. That’s all I have to say. If you have any questions, I’ll be happy to answer them.
Assemblyman Anderson:
You don’t feel that “the petition is procedurally incorrect” is sufficient language to give you protection?
Renee Parker:
I’m not certain, and that is why I just wanted to bring it to your attention, to have them take a look. If it was a fraudulent issue on the signatures, I think the signature count would cover it. Fraud is really a substantive legal issue, so I’m concerned that it may be deemed more of a substantive process than the procedural process itself. I just wanted to bring it to your attention.
Assemblyman Anderson:
Is the qualifying of a petition currently not a procedural question that comes in front of you, and you do your random selection of the validation of signatures? So this would not change that as a procedural requirement. It would be exactly the same, regardless. That would be a knockout blow initially, would it not? We’re not changing that part of the process.
Renee Parker:
No. I agree. You’re not changing that. I think for the most part “procedurally incorrect” would cover it. I’m just concerned that somebody may argue that they’re transmitting it to us to transmit to the Attorney General for further investigation if there were an allegation of fraud. That may be deemed a substantive issue rather than procedural. I’m comfortable with your legal counsel’s interpretation. I just wanted to put that on the record that you may want to take a look at that to ensure that that does cover those situations.
Assemblyman Anderson:
If that’s the way they drafted it, that’s kind of the way I asked them to draft it. I believe that’s what Ms. Freeman’s intention was when she asked them to draft it. We’ve got a pretty good legal counsel. I think we’re covered. But if you’d like to get us on the record in that regard, I think that you are covered. But that’s my supposition. If you want it in writing, you can ask Legal.
Vice Chairman Conklin:
I think we’ll get the Research Division to check with the Legal Division it just to make sure. I think Mr. Anderson is probably correct, but we’ll double check.
Barbara Reed, Douglas County Clerk-Treasurer:
[Introduced herself.] Basically, I’m also neutral on this bill. I just had the same concerns Renee [Parker] did with the term, “take any other action to challenge.” I did not want to find myself in a position where I am in court because I have removed signatures from a petition, and I didn’t want that to be deemed that I was challenging the petition. I think she’s addressed it, and if that is clarified through legal counsel, then that will address my concerns.
Assemblywoman Pierce:
Earlier, it was suggested that if there was a petition and it went on the ballot and the voters voted on it, and later on it was found unconstitutional, that somehow some horrible thing would ensue. I remember many times that the Congress of the United States and the President have signed laws that have later been found unconstitutional. Somehow, the republic has survived. I just wanted to say that.
Vice Chairman Conklin:
I think Mr. Anderson is over there saying, “Didn’t I say that earlier?” We’ve come full circle. I’m going to close the hearing on A.B. 292, and we’re going to move on to A.B. 298.
Assembly Bill 298: Prohibits state and local governments from paying for certain publications, advertisements and television programming that are reasonably likely to affect outcome of election. (BDR 24-408)
Assemblyman David Parks, District No. 41, Clark County:
[Introduced himself.] I’m here today to present A.B. 298 to you. Assembly Bill 298 is a bill that I asked for that would revise provisions relating to the use of public funds to promote public issues. I might first start off by saying that there is S.B. 123 that was introduced by Senator Titus on the Senate side, and it’s a very similar bill. It has many of the same provisions. It was intended to put limitations on political candidates.
My bill is a little different in that I seek to put limitations on the use of public funds to promote political issues and programs. What we have seen in recent years has been a large clamor regarding local governments using taxpayer dollars to lobby the public on issues intended to persuade the public in favor of positions that it supports, as well as promoting the elected body and, perhaps, even its chairman. Over the last few years, there [has] been a proliferation of questionable ads and publicity campaigns promoted by various levels of government intended less to inform the public—and I emphasize that—and more to promote either the elected officials or the issues that that particular agency supports.
This bill would establish limitations on such things as advertising and publicity campaign activities that public bodies, as well as publicly regulated monopolies, could engage in. I’d like to give you a few examples of what has happened. There have been a number of events where public dollars were spent promoting an elected official every bit as much as the event that was being promoted. There was also a situation—and I think we just had recent testimony that talks of that—in that public officials have been using taxpayer funds to promote favorable public opinion for such things as the construction of the train trench in Reno.
Last July, the University Medical Center published a full-page ad in the Sunday edition of the Las Vegas Review-Journal, costing the public hospital $9,243 for a political advertisement supporting tort reform.
Last August, the EPA (Environmental Protection Agency)—and I know it’s not a northern Nevada governmental entity, but it serves as a good example—ran a full-page ad in a local newspaper promoting tours of Yucca Mountain Nuclear Waste Repository under the guise that it was public information.
Another one that perhaps bothered me more than anything else was that the Regional Transportation Commission (RTC) of southern Nevada, in pursuit of its Question 10 on the election [ballot] last year, spent $383,000 in taxpayer funds on an ever-present television and print ad campaign for its proposal. Of course, it was under the guise that, “Gee, we have congested streets.” I think that everyone in southern Nevada knows we have congested streets.
I think that this violates the spirit of existing regulations, which state that governments cannot campaign for one side or the other on such issues. It appears that in this case the RTC got around the requirements because it doesn’t specifically reference the fact that citizens should vote for the advisory ballot question. The ads were clearly targeted toward generating voter support for the tax plan and represented an unfair advantage for the other position.
I guess in the 30 years that I’ve spent in government I’ve seen that local governments are spending large sums of money seemingly to promote [themselves] through expensive and elaborate television studios, as well as operating cable channels. In and of themselves, I think that they serve a good purpose, but I think that there is certainly some limitation that needs to be placed on this type of expenditure by all levels of government. I’ll entertain any questions you might have.
Assemblyman Grady:
Assemblyman Parks, just to make sure, let’s say the Governor is on television advertising the state of Nevada, and he is a candidate. This would not affect something of that matter?
Assemblyman Parks:
I think that you probably need a little more information on exactly what and how that is being done. It’s an extremely gray area. In my searching for other states and other types of regulations that would deal with that, I had a hard time finding anything that remotely covered this issue. However, I’m certain that there must be something out there that would do that.
The issue is, at what point does it cease to become informational and even promotional of the entity and then [tries] to sway public opinion in favor of a specific position?
Assemblywoman McClain:
Just a little concern on the public television stations. Last summer when we had commissioners running for re-election, there was some sort of a scam going on. The county public information officer, or county manager, made a policy that basically said if you’re up for re-election, and you’re not going to be doing that one-on-one interview segment on TV, obviously you’re going to be on the board when they broadcast the board meetings and stuff like that. Can’t avoid that. It got to the point of what do you decide if you send out a publication that has all the commissioners’ names on there, like the Sandstone, that paper that we sent out? Each of the commissioners has their own section in it. Where are we going to draw the line between having information being put out from a commissioner for their specific district and saying that it’s publicity for them because they happen to be running for office that year? I think this is going to be a problem. And who is going to enforce this?
Assemblyman Parks:
I have to agree with you entirely. Maybe I can throw another example of what might be a more obvious situation. We have this absolutely wonderful State of Nevada Comprehensive Annual Financial Report. It is very well printed, and it has tremendous photos and everything else. It goes well beyond. I’m sure our Comptroller, who’s responsible for publishing this document, wants to make her document look as good, if not better, than the neighboring state. But if you looked at the quality of the paper it was printed on and everything that was added into it, it becomes quite a lavish document, not to mention the wonderful full-page picture of the Comptroller, as well.
I think that what we’ve found, and this is probably the cynicism that our voters see, is that they see us spending a tremendous amount of money, including the fact that these were mailed out first class. It’s a heavy document, not to mention what first class might cost. I think that everyone’s trying to do one better than the next. One community puts out some publication, and the neighboring community looks and says, “Wow. We need to make something a whole lot better,” without due consideration to the financial costs and that it is funded from taxpayer dollars.
Vice Chairman Conklin:
Any other questions for Assemblyman Parks? [There were none.] Assemblyman Parks, I have a couple of people identified to speak on behalf of this bill. Are they with you? Is there an order in which you’d like me to take them?
Assemblyman Parks:
Mr. Chairman, no, they’re not.
Vice Chairman Conklin:
And also, before I let you up, there has been a proposed amendment.
Assemblyman Parks:
Yes, there has been a proposed amendment dealing with the term of community access, which would be incorrect. We’re talking about governmental acts. I believe that is the change that was suggested.
Vice Chairman Conklin:
Are you looking at the one proposed by Clark County (Exhibit P)?
Assemblyman Parks:
Yes, that is correct. I do not have a problem with that.
Antonio Gutierrez, Intern to Senator Dina Titus:
[Introduced himself and read from a prepared statement (Exhibit Q).] To address Ms. McClain’s earlier question, when S.B. 123 was addressed in the Senate for Senator Dina Titus, those provisions would be enforced by the Office of the Secretary of State.
I come before you today to speak in favor of and to defend the merits of A.B. 298, which ultimately seeks to amplify the will of the people of the great state of Nevada.
It is absolutely critical that the Legislature take this bill into consideration and assist in enacting it. The federal government in recent years has taken bold steps to curb and circumscribe the actions of publicly elected officials in federal elections when the use of public funds is concerned. I would remind the Committee that I am addressing the portion of the bill dealing with prohibiting the use of public funds for the publications, advertisements, and television programming that prominently feature public officers who are running for public office.
The federal government did the right thing by choosing to defend and protect the interests of the people above and beyond those of elected government officials. As Associate Justice to the U.S. Supreme Court Ruth Bader Ginsburg once said, “The interests, well-being, and wishes of the people must supersede those of the government in all circumstances if democracy is to ever blossom.”
[Antonio Gutierrez continued.] I have examples of the federal government curbing the use of public funds in federal elections when publicly elected officials are concerned (Exhibit R).
In Legal Services Corp. v. Velazquez, the U.S. Supreme Court deemed the use of public funds in congressional campaigns unconstitutional unless the people who deposited funds into the accounts were notified first. The Court commented, “When a spending program, especially one that deals with the use of public funds by an elected officer of government without the approval of the people, is not universal but limited,“ which is the case here since some elected officers are privy to it while others are not, ”it provides benefits to a restricted number of recipients; such selective spending is unconstitutionally coercive because it encroaches on the people’s First Amendment right ‘to express’ where their money can go and how it can be spent.”
The Court further explained that federal elected officials who utilize public funds to finance ads in their favor “distort an existing medium of expression [elections],” because they impose their ideas upon the people without allowing them the freedom to seek other potential candidates. The court essentially found the use of public funds to finance ads unconstitutional because it favored some elected officials and disadvantaged others, thereby making elections “one-sided.”
If elected officials are permitted to use public funds to finance ads and commercials that feature them, then they are essentially granted a loophole to circumvent and evade campaign finance limitations and campaign contribution reporting requirements. To avoid this dilemma in federal elections, Congress has enacted several laws intended to protect public funds from being used as campaign contributions as well.
The Campaign Reform Act of 2001 prohibits any elected official from using public funds to pay for ads that feature them unless individual citizens deposit funds into an account specifically established for that purpose. The Campaign Communications Reform Act and the Campaign Expenses Publicity Act further prohibit publicly elected officials from using public funds to finance ads or commercials that feature them by requiring federal elected officials to report any and all funding used to pay for ads in which they are prominently featured and who funded them.
[Antonio Gutierrez continued.] There are currently 11 states across the nation that have already enacted provisions prohibiting the appearance of publicly elected officials in any ads or commercials that are paid for by state or public funds. I can provide you with a list of those states if it is the desire of the Committee (Exhibit S). For example, states such as Maryland, New York, and especially Vermont, severely restrict the use of public funds by elected officials altogether.
As you can very clearly see, A.B. 298 would be in line, but not excessive, when compared with what other states have done. In those states where extensive data is available, statistics demonstrate that the prohibition of elected officials from using public funds to pay for ads that feature them has significantly increased the confidence and trust of the people in the government, the elections system, and in public officials in general.
States that have adopted this provision have also demonstrated less corruption among public officials, higher voter participation, and [fewer] complaints by voters of ethical violations against public officials. It is obvious that many positive and desirable results have risen from enacting such a crucial piece of legislation. It is now time for Nevada to act.
Currently, there are no regulations under the Nevada Revised Statutes that address the use of public funds that feature political officials up for re-election. Nevada must now follow the example heralded by the federal government and other states and tighten its laws via the enactment of A.B. 298.
The use of state funds by publicly elected officials to finance their own political ads bolsters their probability to win re-election, which grants them an automatic advantage and places new candidates seeking public office at a clear disadvantage. Allowing publicly elected officials who are near re-election to use public funds to finance any ad or commercial severely undermines and circumscribes the effectiveness of elections.
If the actions of publicly elected officials, namely utilizing public funds to further their own political goals, stifle the people’s freedom of expression by willfully preventing the election of other potential candidates to that office, then elections themselves cease to serve their intended purpose. The Legislature must level the playing field for all candidates and prevent unfair expenditures of taxpayer dollars.
By enacting A.B. 298, this Legislature will have delivered an effective message to all those elected officials who wish to utilize public funds for their own political goals that it will not tolerate such misuse of taxpayer dollars.
[Antonio Gutierrez continued.] Legislators, I urge you to enact A.B. 298. It will successfully prevent public funds from being misspent on implicit re-election campaigns, and it will also guarantee the maintenance of free, competitive, fair, and clean elections. You, as Assemblymen and Assemblywomen, can assure that the taxes the people of the state of Nevada pay into a public fund are not utilized as extra campaign contributions by publicly elected officials.
I am most grateful to you today for listening to me. I will furnish all evidence to the Committee as soon as I am able to do so. I would like to thank the Committee and Assemblyman Parks for allowing me this opportunity.
Vice Chairman Conklin:
Are there any questions from the Committee? [There were no questions.] You did a good job.
Andrew List:
[Reintroduced himself.] Dan Musgrove had to step out for another hearing. He asked me to present this amendment (Exhibit P) to the Committee and explain its purpose.
The bill, as currently written, would not allow public access cable channels owned by the government to have debates during the elections. He thinks, and NACO thinks Clark County believes, that public access to cable channels should be [permitted] to host debates as long as all candidates are allowed to be part of the debate. This amendment would allow that.
Assemblyman McCleary:
Mr. List, Clark County has its own channel. Anytime you’re flicking the channels you see some county commissioner up there telling what a good job he’s doing and all these different little magazine programs that they have. Would this exempt that also?
Andrew List:
I cannot answer that question. I can only answer what this amendment would do. I just don’t have the answer for that. I can certainly have Mr. Musgrove contact you directly and answer that question.
Assemblyman McCleary:
Mr. Chairman, would our Legal be able to answer that question for us?
Vice Chairman Conklin:
We can certainly ask it of Legal, Mr. McCleary. I do want to remind you as well, though, that Assemblyman Parks has approved this amendment to his bill. For the record, I think that’s important to note. Ms. Hansen, did you want to speak on behalf of A.B. 298?
Janine Hansen, President, Nevada Eagle Forum:
[Introduced herself.] I would like to speak in support of A.B. 298. I think it’s a very important bill, which underlies the position that government shouldn’t be using its funds to promote a particular candidate. I am particularly interested in the portion that prohibits them from using funds to promote a ballot initiative. I think one of the safeguards in this is that government can print things up until 90 days before the election. So the rest of the year they can print whatever they have, and that wouldn’t be considered as falling under this bill, which I think is good, because they need to be able to inform the voters of what they’re doing in their city, or their county, or in their office. So I think that’s an important provision of this.
I do have one question. I asked several people whether or not in Section 1 in the current law where it says, “The government of this state or a political subdivision of this state,” if that includes subdivisions within a county. For instance, just the other day we were talking about Mr. Mortenson’s bill, A.B. 293. He had to bring this forward because the school district and others considered that they weren’t covered by these particular provisions. I want to be sure that these provisions cover all levels of government, not just cities, or counties, or the state, but including the other levels of government, such as school boards and the county school district. So that’s a question I have, and I’m not sure I received an adequate answer, but I think it’s an important one so we don’t have to come back next time and have another bill like we did with Assemblyman Mortenson’s.
I do support this bill. I think the concept is excellent, that we shouldn’t have government competing with the individual citizens and political parties and so forth by using their funds to promote a particular point of view or particular candidate.
Chairwoman Giunchigliani:
Janine, this is either to you or back to the sponsor. “Government of the state.” Would that also include constitutional offices? If it doesn’t, we might want to capture that, because I think that’s also appropriate. Not to criticize one way or another, but we do have for the Millennium Scholarship, the Treasurer. It’s not about him or her. It’s about the program, and I think some things have gone beyond, as well, there.
Vice Chairman Conklin:
Lynn Chapman, I have you marked, but uncertain [if you want to speak]. [Ms. Lusk signed in support of the bill.]
Renee Parker:
[Reintroduced herself.] We support this bill. We supported Senator Titus’ S.B. 123, which is the equivalent of this bill. And in response to Madam Chairwoman’s question about whether it covers constitutional offices, we do believe, and we did check into that, this would cover our office, which is a constitutional office, and all other constitutional offices.
We receive about 10 to 20 complaints every election cycle concerning public officers using state money or local monies to support or oppose a candidate, for the most part themselves. It is very difficult under the current statute to make a determination as to whether it’s a part of carrying out their duties of office or engaging in the support or opposition of a candidate. I think the provisions in this bill will definitely help our office to make that determination with the clarification and the more defined statute as to what that support or opposition entails. So we’re in support of this bill.
I think in Senator Titus’ bill there was an amendment the Ethics Commission had some concerns with. I don’t know if the Committee wants to consider this, but they did add this provision to the ethics’ statutes. As to Assemblywoman McClain’s earlier question, this is enforced under Title 24, and we do enforce it. So it would not be an ethics violation under the jurisdiction of the Ethics Commission. I believe in that amendment you may want to consider looking at the amendment to S.B. 123 that put it in the ethics statutes, and some other amendments that clarify some of the language. If you have any questions, I’ll be happy to answer them.
Vice Chairman Conklin:
Any questions for Ms. Parker from the Committee? [There were none.]
Barbara Reed, I have you down as neutral for A.B. 298. Did you have any additional testimony to add? [Ms. Reed did not have additional testimony.] Is there anyone wishing to add additional testimony to A.B. 298 that has not been called upon? Seeing none, Madam Chair, if you will permit it, I will close the hearing on A.B. 298.
Chairwoman Giunchigliani:
We will open the hearing on A.B. 307.
Assembly Bill 307: Creates Silver State Commission on Prescription Drugs. (BDR 17-165)
Assemblywoman Sheila Leslie, District No. 27, Washoe County:
[Introduced herself.] I know the Committee has been here for a long time. This is going to be a short bill. A very simple bill. Really, Mr. Anderson, I promise you.
This bill [A.B. 307] establishes the Silver State Commission of Prescription Drugs. It’s a reaction to the feelings of myself and others in our state that perhaps we’re not getting the biggest bang for our buck in terms of buying prescriptions for state clients, state workers, and low-income persons who need help with their prescriptions.
The commission would review the purchases by various state and local agencies of prescription drugs. They would be charged with finding the least expensive pharmaceuticals and review money-saving measures that would possibly include interagency bulk buying, state buying clubs, and rebates. Many other states have already initiated various methods to save money when purchasing pharmaceuticals.
There are some handouts that are coming your way, and the first one I’m going to talk about is this long one (Exhibit T). Many Nevada agencies already participate in an interstate bulk-buying agency, which is called the Minnesota Multi-state Contracting Alliance for Pharmacy, commonly referred to as MMCAP. They use this bulk-buying agency to secure lower priced prescription drugs. Forty states currently participate in the program.
Agencies that utilize Minnesota Multi-state Contracting Alliance for Pharmacy (MMCAP) are not required to use MMCAP contracts, but they’re encouraged to since they are generally lower than what the state could secure on its own. There are a number of Nevada groups that participate in MMCAP, including the Nevada Veterans Nursing Home, the Department of Corrections, the State Health Division, State Purchasing, Ely State Prison, and it goes on from there, as well as entities from the Clark County Health District, the Washoe County Health Department, and the Washoe County Sheriff’s Office. You can see that there’s a wide variety of people in this particular consortium.
The MMCAP is a valuable tool for the states and local agencies because it allows them to combine their purchasing power, thereby paying significantly less for the drugs. Another benefit of MMCAP is that it frees states to join, and it does not create an additional financial burden on those states.
[Assemblywoman Leslie continued.] However, there are other options besides the Minnesota consortium, and that’s what the second handout outlines for you (Exhibit U). This is from the National Conference of State Legislatures (NCSL) Web site, and it shows you the different options various states have been looking at in terms of prescription drug programs both in 2001 and 2002. You can peruse that and see the wide variety of methods that states are using to try and get better prescription prices.
Other states have banded together to create other intrastate buying pools, and they’re typically formed between states that share geographical and socioeconomic factors. One alliance that is getting a lot of attention right now was formed between Massachusetts and California in 2001, and we are looking, as State Purchasing will tell you, at possibly trying to join that. Other methods adopted by states to counter increasing drug costs include subsidy programs, general discount programs, waivers for seniors and the uninsured, price controls, and tax credits for pharmaceutical purchases. I’m not suggesting price controls, let me just get that on the record.
Some other states have adopted measures that price prescription drugs at the same rate as the federal supply schedule. And finally, other states have adopted purchasing cooperatives and buyers’ clubs.
In an ideal world, the Silver State Commission would be something that we could fund. But I did get a fiscal note, which I’m sure you’ve seen too, which is anticipating it would cost the state $127,127. If the Committee decides that there’s a better way to handle this, my [desire] is to make sure we take a hard look at this issue.
If there’s another interim study, and I know that this is the Committee that looks at interim studies, I know health concerns are a huge issue this session. And if you decide that this could be a topic within another interim study, I would be happy with that, personally. I just want to make sure that we take a hard look at this issue.
I have people here today from State Purchasing, from PhRMA (Pharmaceutical Research and Manufacturers of America), Dr. Carlos Brandenburg is here from the State Mental Health Division, as well as AARP. Scott Watts is here. We weren’t sure he was going to be able to stay this long, so I have already given the Committee Scott Watts’ letter (Exhibit V), but perhaps he would like to say a word about that. I’d be happy to answer any questions. [Assemblywoman Leslie provided a letter she received from Martin Bibb, Retired Public Employees of Nevada, (Exhibit W).]
Chairwoman Giunchigliani:
Are there questions for Assemblywoman Leslie? [There were no questions.] You did well.
Scott Watts, President, Nevada Alliance for Retired Americans (NARA):
[Introduced himself.] I’m here today to advise you that NARA strongly supports Assemblywoman Leslie’s bill, A.B. 307. The Nevada Alliance for Retired Americans represents over 5,000 retirees in the state of Nevada. Health issues and medication and prescription drugs are the main issues that face our members.
I know you have heard this many times, but it bears repeating. Most seniors today make difficult choices about their medication. In many cases, they are choosing whether to eat or buy medication. Many take half of the doses prescribed by their doctors to save on the costs of their bills. Seniors need the Silver State Commission on prescription drugs. This is the first step towards addressing the needs of the seniors and retirees in this state. We hope to participate and work closely with the commission if this bill should pass. The Nevada Alliance for Retired Americans has always supported prescription programs that reduce the price of drugs for low-income persons, state employees, seniors, and persons with disabilities. We will continue to support those groups in need of assistance from the state. Thank you for your attention.
Larry Spitler, Associate State Director, American Association of Retired Persons (AARP) Nevada:
[Introduced himself.] The American Association of Retired Persons (AARP) is a nonprofit, nonpartisan membership organization dedicated to making life better for people over 50. In Nevada, we have over 258,000 members.
We’re here today to lend our support to A.B. 307. If you take a look at it, it’s actually broader than just the words on the paper in terms of what it has the potential of accomplishing. I think as we look at prescription drugs today, we all know what we would like it to look like. However, I think the buying of prescription drugs and providing medication to seniors and to the general population over time is going to change dramatically day after day. We’ve seen a lot of that as we focused on these issues through this legislative session.
We appreciate very much being included in the bill, and we would work very hard with the committee should the Committee process this bill and it actually become law. The American Association of Retired Persons has been working very diligently at the national level to get a prescription component in Medicare, and we think that this particular committee addresses the very dire needs faced by Nevadans.
I would indicate, Madam Chair and members of the Committee, where it talks about the appointment of a representative of the Nevada State Office of the American Association of Retired Persons, we’ve actually abbreviated that. We’re now just simply “AARP.” I would be glad to answer any questions from the Committee.
Chairwoman Giunchigliani:
And you would not object if we wound up processing this as part of the health care study if that’s what we choose to move forward as a Committee?
Larry Spitler:
We understand the money issues and all of those things. We just appreciate you looking at [this] from a policy perspective, because we think that’s where we probably will find long-term answers.
Chairwoman Giunchigliani:
Mike Kuckenmeister, you’re here from State Purchasing. Just a question. You’ve been able to enter, and apparently some of our agencies have been able to enter, into agreements. Is there any other separate legislation from this that you would need that we might look at this session to give you more ability to be able to negotiate some broader contracts?
Mike Kuckenmeister, Chief of Materials Management, State Purchasing Division, Department of Administration:
[Introduced himself.] We feel that we have sufficient authority in NRS Chapter 333 to explore a wide range of contracting options that would suit the needs of our customers.
Chairwoman Giunchigliani:
Since it’s the state of Nevada, are you prohibited in any of your contracts from entering into agreements with other public employee groups for the purposes of capturing better deals on prescription drugs?
Mike Kuckenmeister:
To the best of my knowledge, no. One of the things we have to be very careful of is [that] we’re restricted by case law and antitrust laws and various types of procurements that we engage in. We’re only allowed to engage in procurement for what the MMCAP organization calls “own use.” But we’re not authorized to compete with retail pharmacies or programs traditionally run through retail pharmacies.
Chairwoman Giunchigliani:
That’s interesting, because I did have Legal look at it. I had been approached before I came up here by the various police, fire, teachers, and county governments who are interested in forming a consortium. They felt that because it’s public employee-to-public employee, that we would not violate the antitrust laws to be able to formulate that kind of thing.
Mike Kuckenmeister:
I’m not an attorney.
Chairwoman Giunchigliani:
Neither am I. Would you mind having that looked at? Or I’ll have Legal take a broader look at it if that’s the case. And even if it is own use, that would be better for buying power, because you’d probably have 150,000 individuals rather than 35 or so.
Mike Kuckenmeister:
We’re interested in helping in any way we can with this.
Chairwoman Giunchigliani:
I may pursue that if the Committee doesn’t object.
Assemblywoman McClain:
We’ve had discussions. Assemblywoman Koivisto has a bill to look at the Michigan plan, and in those discussions we were talking about this “own use” thing. They’re not dispensing it to other organizations? That would be an “own use,” I think.
Chairwoman Giunchigliani:
I think that’s why Legal gave it to me. They’re not distributing it to anybody else. It’s for their members’ use, so to speak.
Assemblywoman McClain:
That was why in her bill it was to have Purchasing provide, through their consortiums, drugs to other different state agencies, including Mental Health.
Mike Kuckenmeister:
Madam Chair, I do know that historically, in colleges and universities throughout the country, medical schools do provide medical services as well as pharmacy services to the student body, and, I believe, the faculty and staff in the university and community college system. That is not seen as a violation, so anything that is similar to that I would think would certainly merit consideration. [Mr. Kuckenmeister presented written testimony (Exhibit X).]
Chairwoman Giunchigliani:
I’ll have Legal take a look at that and get back to Assemblywoman Leslie and Assemblywoman Koivisto.
Tom Wood, representing Pharmaceutical Research and Manufacturers of America (PhRMA):
[Introduced himself.] I did see Assemblywoman McClain’s eyes light up when she mentioned price controls. I just want to let the Committee know that Assemblywoman Leslie, very early on, brought us into the picture to try to help iron out the details of the bill and to try to keep us all working together to come up with a product that would allow the state of Nevada to purchase better, more wisely, and less expensively. In so doing, we’re officially neutral on the bill. We have a little concern with the subpoena power that’s in the bill in terms of confidential information. We’ve discussed those issues, and if the bill should go to study, I would offer the services of our organization to help in the study process.
Chairwoman Giunchigliani:
We appreciate you working with the sponsor. It’s a good, very timely piece of legislation. Something has to happen. This, if nothing else, will get the policy moving forward, and I think that’s key to it. I have no one else signed in on A.B. 307. We will close the hearing on A.B. 307.
I apologize. [Referring to Brian Woodson] if you had been the Speaker, we of course would have taken you ahead of time. I want that noted on the record. We will open the hearing on A.B. 344.
Assembly Bill 344: Provides for special election to fill vacancy in office of Representative in Congress in event of catastrophe. (BDR 24-648)
Brian Woodson, Intern for Speaker Richard Perkins:
Thank you, Madam Chair, and members of the Committee. For the record, my name is Brian Woodson, senior at the University of Nevada, Las Vegas, and intern for Speaker Richard Perkins, Assemblyman from District No. 23 in Clark County.
I am very pleased to be here today on behalf of Speaker Perkins to present to you A.B. 344. Upon providing my testimony, because the main provisions in the original bill and the proposed amending bill differ rather considerably, I would ask the Committee to focus your attention upon the mock-up bill I have submitted to you (Exhibit Y). As I refer to A.B. 344, I will be referring specifically to the mock-up version I submitted to you.
[Brian Woodson continued.] As all of you may know, federal, state, and local governments are all too often criticized for taking a reactive approach to formulating public policy. A.B. 344, however, essentially provides a proactive approach to formulating policy relating to Nevada’s representation in the United States House of Representatives. Accordingly, this bill provides provisions and procedures to fill vacancies in Nevada’s seats within the House of Representatives. It specifically provides for two separate instances where vacancies may be created.
In the first instance, the bill imposes provisions and procedures for a special election to be held in the event of a natural vacancy upon the death, resignation, or declination of one of Nevada’s members of the United States House of Representatives.
To provide a little background, in 1915, as a result of the Seventeenth Amendment passed in 1913, and as a reactionary response to the sudden death of Senator George Nixon in 1912, the Nevada Legislature passed a law to specifically address vacancies within the office of United States Senator. Although a similar provision was included in Article 4, Section 34, of the 1864 Constitution of the State of Nevada, it was never formally drafted into the Nevada Revised Statutes until 1915.
Currently, Chapter 304, Section 30, of the Nevada Revised Statutes states, “In case of a vacancy in the office of United States Senator caused by death, resignation, or otherwise, the Governor may appoint some qualified person to fill the vacancy, who shall hold that office until the next general election and until his successor shall be elected and seated.” There have been five occasions when Nevada Governors have filled a vacancy by appointment in the office of United States Senator. However, in the 139 years of Nevada’s history as a state, there have been no vacancies among Nevada’s delegates in the United States House of Representatives.
Since 1985, at least 40 members of the House have died while in office; at least 30 members have resigned from office; and at least 30 special elections have been held to fill congressional vacancies within the House. Members within the House of Representatives pride themselves on the fact that no member of their House has ever been appointed to a seat. Every member to ever be seated to the House of Representatives has been elected. This reason is due to Article 1, Section 2 of The United States Constitution where it states, “When vacancies happen in the representation from any state, the executive authority thereof shall issue Writs of Election to fill the vacancies.”
[Brian Woodson continued.] Upon reviewing the original text of this bill pertaining only to the filling of House vacancies as a result of a catastrophe, it has come to my attention that because Nevada has never had a vacancy in the House, Nevada does not have any statute providing any procedures to fill such a vacancy. Should one of Nevada’s representatives within the House die in office, or resign from office, our Governor would currently do one of two things: He would either leave the seat vacant until the next general election, or he would issue a Writ of Election and then formulate the necessary procedures for a special election to be conducted.
Because no procedures have been formulated in Nevada’s statutes, this reactionary response could take some time, thereby prolonging the amount of time one of Nevada’s seats would remain vacant. This amended bill would save that time and officially authorize a special election to fill the natural vacancy. A special election would be held within a maximum of 180 days after the issuance of an election proclamation by the Governor. The election proclamation shall be issued no more than seven days after the date of the vacancy. If a general election happens to fall within the 180-day period, the special election may be consolidated into that next general election, thereby making the special election unnecessary.
In the second instance a vacancy may be created, this will provide provisions and procedures for a special election to be held in the event of a catastrophe. As you all may know, Speaker Perkins was selected to sit on the National Conference of State Legislatures, a task force on protecting democracy. Due to the tragic events of September 11, 2001, and the possibility of future attacks upon America, the task force suggests that each state create distinct provisions and procedures to call for special election for vacancies within the U.S. House of Representatives caused by catastrophe.
On September 11, 2001, passengers on United flight 93 heroically took matters into their own hands to prevent terrorists from striking a target in Washington, D.C. Although we do not know specifically of which target they were aiming, the White House and the Capitol were good possibilities. On that morning, it is believed the House Floor was quite busy. If that flight had taken off on time, instead of 41 minutes late, and that plane had headed for the Capitol, it is possible hundreds of members of Congress, along with their staff, could have been killed or severely injured. Therefore, it is critical each state create distinct provisions and procedures to call for special elections in an extremely timely manner so that Congress will be able to resume as soon as possible.
[Brian Woodson continued.] Within A.B. 344, a catastrophe is basically defined in two ways. First, a catastrophe occurs when at least 50 percent of Nevada’s representatives in the House are killed or severely injured to the point where they cannot perform their congressional duties. Second, a catastrophe occurs when a natural or manmade event causes at least 25 percent of the total number of seats in the U.S. House of Representatives, including representatives of Nevada, to become vacant. In either of these catastrophic instances, a special election shall fill the vacancies within a maximum of 90 days after the issuance of an election proclamation by the Governor. Again, the election proclamation must be issued within 7 days after the event. If the general election falls within that 90-day period, the special election may be consolidated into that general election, thereby making the special election unnecessary.
The deadlines imposed in this bill are set for the maximum amount of reasonable time for special elections to be held. I would ask the Committee to keep in mind that although this bill provides deadlines of the maximum amount of 180 days for natural vacancies and 90 days for vacancies of catastrophes, I would hope for the special elections to be held sooner than what the deadlines impose.
Therefore, I recommend another amendment to this bill, specifically to Section 6, lines 8 and 11, after the word “Tuesday,” to include the phrase, “as soon as practicable.” This will ensure the soon as possible date upon which the special elections could be held. It will also ensure the enforcement of the two deadlines in case special circumstances do not allow for the special elections to be held before the stated deadlines.
While Nevada remains one of the last states yet to provide procedures to fill a natural vacancy, Nevada could be one of the first states to provide procedures to fill vacancies as a result of a catastrophe. This bill is critically important in respect to sustaining our state’s representation in Congress, as well as sustaining the continuity of Congress as a whole.
In recognition of Nevada’s lack [of] procedures to fill a vacancy in the House of Representatives, and in recognition of the ongoing possibility of future terrorist attacks, I strongly urge this Committee to consider A.B. 344. Thank you very much for your time, and I’ll be happy to try and answer any questions that anybody may have.
Chairwoman Giunchigliani:
Thank you, Brian. Excellent job. The Speaker was in good hands. I’m so glad he picked this bill up, because Janine [Hansen] had e-mailed me about a year ago about the issue, and it’s one less bill that I had to do. I think everybody is thrilled. Are there any questions for Brian?
Assemblyman Anderson:
I agree with you, Madam Chair. It was an excellent presentation. The question was about the change from the Tuesday to a date yet practical. One of the things, even in a catastrophe, that you like to set up is a level of predictability. Elections on Tuesday are a predictable event. I envision a catastrophe of such magnitude that it would, quite possibly, include the Governor of the state and other local elected officials. Would you not want to look for the predictability of the Tuesday so that there would be an outside wall to look to? It’s the reason why we look for elections every two years.
Brian Woodson:
The predictability upon whether or not to have elections on a Tuesday? If that’s your question, the only stipulation I’m trying to get by on that provision is that the election needs to be held as soon as possible. If Legal wants to change the language and not change it to a day that’s not on Tuesday or whichever day they want, I’m just trying to make the point that it needs to be done as soon as possible. I don’t know if I answered your question or not.
Assemblyman Anderson:
I understand that the question relates to as soon as possible. I’m not sure how you would put it through here in terms of—Maybe I’m raising a concern that’s mine alone, in which case I’ll back away. It seems to me that it was pretty cleverly done here, and I’m pretty comfortable with it.
Chairwoman Giunchigliani:
I think the wall is there. It has to be no more than 180 calendar days. The idea would be the most practicable Tuesday that was available within that 180 days. And then the same thing for the 90 days. Is that what you’re recommending to us?
Brian Woodson:
Yes, exactly.
Chairman Giunchigliani:
Are there any other questions? [There were none.] Thank you, Brian.
Janine Hansen:
[Reintroduced herself.] I became very interested in this sometime last year when my husband pointed out an article in the Reader’s Digest to me (Exhibit Z), “Clear and Present Danger,” that recommended that if there was a crippling attack to Congress, they might amend The United States Constitution in three different ways. These were the choices given:
1. Amend The United States Constitution so governors can appoint replacements for Congress from any political party.
2. Amend The United States Constitution so governors can appoint replacements, but only from the same political party.
3. Let the House change its rules to allow members to appoint their own successors.
I wasn’t particularly in support of having our congressmen appointed. Therefore, I began to pursue this issue with some interest. Among that information I gathered was from the Continuity of Government Commission, and I have handed out one page [from] their Web site (Exhibit AA).
You will see as you go down these recommendations that there is only one on the last page, and he’s not a congressman, who has suggested that we expedite special election. I was very pleased that this piece of legislation came forward. I know the deadlines are difficult, possibly for the Secretary of State and the county clerks, but I think it’s very important that if the states take the responsibility of providing for special elections, then we won’t have to say to Congress, “Yes, we’re in favor of appointing them, because we haven’t done our jobs here.”
As part of the Continuity for Government Commission meeting, one of the recommendations that they did make was to speed up the special election for House members. I think this helps to circumvent the proposals that they have suggested that we should appoint congressmen. I think it is very important to maintain the fact that they are elected. That’s why I support this bill. I think it’s an important one, and I encourage you to pass it.
Alan Glover, Carson City Clerk-Recorder:
[Introduced himself.] It appears that our concerns are probably taken care of in the proposed amendments to the bill. The concerns were, of course, the original dates that were in here. The 55 days would not allow the clerks to come into compliance with federal law to get those overseas military ballots out in 45 days.
One of the things the clerks and registrars, including Mr. Lomax from Clark County, suggested in here is if the Committee would look at having a very short period of time in which to file for these offices, that in this kind of dire emergency, hopefully, within a few days, you could get people filed for office. I don’t know how that affects the minor political parties, whether they have the authority for their executive committee or one of those to pick their candidates, but a short filing period. Then with the 90 days we should be able to print ballots and get them out. Hopefully, it would only be a one-person ballot for most of us. God forbid anything like this would ever happen. Those are our suggestions, and if we could help you work on it, we’d be more than happy to.
Chairwoman Giunchigliani:
On the filing issue, that’s in Section 7?
Alan Glover:
Correct.
Chairwoman Giunchigliani:
It did just refer to NRS 293.204, and all it says is, “Secretary of State shall establish a date.” Are you thinking that you want to add some language then?
Alan Glover:
No, I don’t think so. Maybe through [regulations] in there, or whatever they feel comfortable with if meeting this portion of statute said you have to file within several days, or something like that, if they had some special time period.
Chairwoman Giunchigliani:
I don’t know if it’s even necessary, but say, “time period prescribed by the Secretary of State per NRS 293.204,” which takes into consideration the mailing of military or out-of-state ballots.
Alan Glover:
Something like that.
Chairwoman Giunchigliani:
Could you just handle that by regulation?
Alan Glover:
I think so.
Chairwoman Giunchigliani:
Janine, on your conventions, how would you handle that?
Janine Hansen:
The minor parties don’t have a primary, they have a convention where they select their candidates. What we did this last time, I think, would work. The state convention, which is the highest authority of the party, authorized the state executive committee to add any people to the list that we had to file with the Secretary of State. We could do that at a state convention, and so could the other minor parties.
Chairwoman Giunchigliani:
Good. That would work out. Are there questions from the Committee? [There were none.] Does anyone else wish to testify on A.B. 344? Seeing none, we’ll close the hearing on A.B. 344.
We’re going to do some of our work session. Maybe not all of it. Just so you know, we’re going to hold until next Tuesday Assemblywoman Chowning’s A.B. 328. I had Michelle [Van Geel] speak to the fire marshal. I have not gotten back with Assemblywoman Chowning. She indicated today that she didn’t want the commercial language in there, and I just don’t want to do something crosswise with the sponsor. I need to get back with her, so we’ll put this on Tuesday’s work session if that’s acceptable.
Let’s take up A.B. 235, Voters’ Bill of Rights.
Assembly Bill 235: Provides Voters’ Bill of Rights. (BDR 24-270)
Michelle Van Geel, Committee Policy Analyst:
[Introduced herself.] Assembly Bill 235 was requested by the Office of the Secretary of State. It provides for a Voters’ Bill of Rights. It was heard in the Committee on March 11, 2003. Listed here are five possible amendments, and I’ll go through them one at a time (Exhibit BB).
The first would amend Section 3, subsection 3, to add the words “threatened and coerced” following the word “intimidated.”
The second one would amend Section 3, subsection 5, to remove the phrase “to the election board.”
The third would amend Section 3, subsection 10, to remove the word “system” and replace it with the word “standard,” “process,” or “procedure,” or another word the Committee is comfortable with.
Number four is Section 4: Delete subsection 3, which would require the Voters’ Bill of Rights to be printed on the sample ballot.
Number five is Section 4: Add language that would require the office of the Secretary of State to post the Voters’ Bill of Rights on their Web site.
Chairwoman Giunchigliani:
Committee, could you look at Section 3, subsection 5? Alan Glover had said to take out the election board. I had noted, and I apologize, that we suggested inserting, “to return a spoiled ballot, and you are entitled to receive another ballot in its place.” I neglected to give Michelle that language. Is that acceptable for consideration? Any comments or questions on the proposed amendments?
Assemblyman Anderson:
Does the Chair have a preference for “standard” or “process”?
Chairwoman Giunchigliani:
No, I do not.
Assemblyman Anderson:
I like “standard” better.
Chairwoman Giunchigliani:
We’ll go with “standard.” I had noted both, so I’m very open to either one. Okay. “To have a uniform, statewide standard for counting and recounting all votes accurately.” Are there any other questions? [There were none.]
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS A.B. 235 WITH THE FOLLOWING AMENDMENTS:
· AMEND SECTION 3, SUBSECTION 3, TO ADD THE WORDS “THREATENED AND COERCED” FOLLOWING THE WORD “INTIMIDATED.”
· AMEND SECTION 3, SUBSECTION 5, TO REMOVE THE PHRASE “TO THE ELECTION BOARD,” AND ADD “IS ENTITLED TO” IN ITS PLACE.
· AMEND SECTION 3, SUBSECTION 10, TO REMOVE THE WORD “SYSTEM” AND REPLACE IT WITH THE WORD “STANDARD.”
ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.
THE MOTION CARRIED.
Chairwoman Giunchigliani:
Let’s take up A.B. 293.
Assembly Bill 293: Revises provisions relating to appointment of committees to prepare arguments advocating and opposing certain ballot questions. (BDR 24-312)
Michelle Van Geel:
Assembly Bill 293 was heard by the Committee on March 25, 2003. It revises the provisions relating to the appointment of committees to prepare arguments advocating and opposing certain ballot questions (Exhibit BB).
The first proposed amendment would be to add language in Section 1 to clarify that the county commission will appoint committees only when the initiatives or petitions are countywide, and that in other circumstances, requiring the governing body of that jurisdiction. For example, Mr. Lomax had discussed the Henderson Library District. The city council in Henderson would appoint that rather than the county commission.
The second proposed amendment would remove the new language in Sections 1(b) and 2(b) and insert the specific districts to do that. When I spoke with legal counsel, [he] indicated the language, “Governing body of a political subdivision” would cover all mosquito districts and other entities like that. Legal suggested adding the specific districts, school, library, water, whatever the Committee would like to do. I also discussed with legal counsel the population figures that Mr. Lomax had brought up about the 60,000. The counsel’s concern with that is, for example, in Henderson, that library district can overlap with other districts. It’s not just the city, so it would be difficult to determine what the population of those districts are. Counsel suggested not inserting language concerned with population.
The third amendment would allow the registrar of voters or the county clerks to establish and maintain a list of people who are willing to volunteer to serve on those committees.
Chairwoman Giunchigliani:
Assemblyman Mortenson, are you okay with number 1?
Assemblyman Harry Mortenson, District No. 42, Clark County:
Ms. Van Geel and I discussed this, and we were trying to figure out all of the implications of this. We came to a conclusion, but I’m trying to remember what it was now.
Chairwoman Giunchigliani:
I know that feeling. It seems to me, on number 1, you were okay with appointing the committees only for the countywide initiatives and petitions. You had concerns about suggestion 3. I don’t think you wanted to capture every mosquito district and everything else that’s out there.
Assemblyman Mortenson:
Right. No, we don’t.
Chairwoman Giunchigliani:
So that would be number 2. Lucille Lusk actually brought it up. The registrars of voters, in some cases, may have started a list but not necessarily. That’s what number 3 would do. Lucille had suggested that maybe if we were to go that route, we could say something like, “This list may only be accessed after due diligence has been made to find the opposition and supporters of the initiative.” I’m just throwing that out for discussion purposes.
Assemblyman Mortenson:
I think that’s an excellent idea.
Chairwoman Giunchigliani:
Because we don’t want them to keep going to the same pool. That was her issue, I think.
Assemblyman Mortenson:
We don’t want to have professional question writers.
Assemblyman Anderson:
I think that was part of the discussion that we had when we first took up this, that we often end up with the same group of people writing, because they have a certain level of expertise in trying to make it clear to the public what the issue is about. Therefore, you want to have somebody who is familiar with a certain skill level to make sure that the verb tense agrees and all those other things.
I would think the creation of a list would not necessarily be the last resort that you want to go to, because it may be when somebody knows that there’s going to be a ballot issue come forward, they would volunteer to put their name into consideration. You wouldn’t want to preclude them from being your first selection if you had to wait until the last second. Just for purposes of discussion, it seems to me that we might have a need for some level of expertise on a continual basis for people who have that ability.
Assemblyman Mortenson:
Madam Chair, the clerk, as it’s called in there, who [is] by law the registrar of voters, does go over the language and works it over, or he has a staff to work it over. I’m not too concerned that the ideas might be confused. The original bill actually speaks to some of that.
Chairwoman Giunchigliani:
You would not object to that, Section 3, of allowing them to do the list with maybe the language I suggested, so that you do have some expertise, but they at least make sure that they are not automatically going to that group, that they ask first for opposition and supporters? A question that Ms. McClain asked me, and I apologize because I just recalled it: Does this prohibit legislators from participating, or other elected officials? I never heard of any, and I know on one of my questions, I didn’t participate. I listed names of people who had testified who they could then contact. I just was curious.
Assemblyman Mortenson:
My recollection is that I don’t think it prohibits that.
Chairwoman Giunchigliani:
I would think that they would be cautious about that, but there might be an interest in an area totally unrelated to your elected office that you might have some expertise, so you wouldn’t want to prohibit that. Does the Committee feel comfortable with that?
If the Committee’s amenable, we’ll take number 1, 2, and then add the language, “This list may only be accessed after due diligence has been made to find individuals in opposition or support for the issue.”
Assemblyman Anderson:
I realize that we may not wish to get to the mosquito district. I guess I like the bill drafter’s public political subdivision question, because I do think that there are times when, for some communities, that may be the biggest pressing issue. If we’re going to make a long litany of places, then we would be better off just with the general term rather than trying to be the school district, libraries, water districts. I like the broader term.
Chairwoman Giunchigliani:
So you’re suggesting maybe looking at “political subdivision” without the “public or quasi-public” and maybe consider that.
Assemblyman Grady:
I think in most cases, and using mosquito districts as an example, they fall under the county commissioners. Maybe they have an appointed body, but I don’t know [whether] the small groups like that would have an elected body. Most of them, I think, fall under the county commissioners.
Chairwoman Giunchigliani:
School or library districts would be considered political subdivisions then. Assemblyman Mortenson, would that be acceptable to you?
Assemblyman Mortenson:
Yes.
Chairwoman Giunchigliani:
Does the Committee understand what we’re discussing? We would go back to the language in there, but just delete “public or quasi-public corporation.” Would we leave in “or other local agency”?
Assemblyman Grady:
Maybe say, “elected agencies.”
Chairwoman Giunchigliani:
What would be a local agency? Why don’t we just stick with “political subdivision.” I’ll get an answer to that from Legal just to make sure. But as amendments, at least processing, if that’s acceptable?
Assemblywoman McClain:
What about the water districts and RTC? Are they political subdivisions?
Chairwoman Giunchigliani:
They’re political subdivisions. They don’t have an elected body. So if we put elected, then we would not necessarily capture them, and they should be. So the amendment would be to go with number 1. Number 2, instead of the language on your work session, we go back to the original language in (b), but just strike after “political subdivision,” and then allow for “to submit questions.” Keep the words on 9 and 10. Is there a motion?
ASSEMBLYWOMAN McCLAIN MOVED TO AMEND AND DO PASS A.B. 293 WITH THOSE AMENDMENTS DISCUSSED.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
THE MOTION CARRIED.
Chairwoman Giunchigliani:
We are adjourned [at 6:44 p.m.].
RESPECTFULLY SUBMITTED:
Kelly Fisher
Committee Secretary
APPROVED BY:
Assemblywoman Chris Giunchigliani, Chairwoman
DATE: