MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 6, 2003
The Committee on Judiciarywas called to order at 8:06 a.m., on Thursday, March 6, 2003. Vice Chairman John Oceguera presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. Bernie Anderson, Chairman (excused)
Ms. Barbara Buckley (excused)
Mr. Harry Mortenson (excused)
Ms. Genie Ohrenschall (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Robey B. Willis, Justice of the Peace, Carson City Justice/Municipal Court, Department 1
John Tatro, Justice of the Peace, Carson City Justice/Municipal Court,
Department 2
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving (MADD), Dayton
Mark Gibbons, Associate Justice, Nevada Supreme Court
Nancy M. Saitta, District Judge, Eighth Judicial District Court, Department 18, Clark County
James W. Hardesty, District Judge, Second Judicial District Court, Department 9, Washoe County
Joe Tommasino, Staff Attorney, Justice Court, Las Vegas Township
Vice Chairman John Oceguera:
The Assembly Committee on Judiciary will come to order. [Roll called.] We have three bills on the agenda this morning; we are going to go a little out of order.
Judge Robey B. Willis, Justice of the Peace, Carson City Justice/Municipal Court, Department 1:
[Introduced himself.] With me is my partner Judge John Tatro, Justice of the Peace, Municipal Court Judge in Carson City.
Vice Chairman Oceguera:
Judge, you are going to be speaking on A.B. 106, correct? [Judge Willis replied in the affirmative.]
Vice Chairman Oceguera:
Thank you; let’s open the hearing on A.B. 106.
Assembly Bill 106: Revises penalty for driving under influence of intoxicating liquor or controlled or prohibited substance and revises qualifications of person who may apply to court to undergo program of treatment for alcoholism or drug abuse. (BDR 43-606)
Judge Robey Willis:
Today, we are here on A.B. 106. The last session of the Legislature, right at the very end, we came in with a huge bill that changed the domestic battery law and DUIs [driving under the influence]. Chairman Anderson said, “Please split it and come back next time.” So, we did, with very few changes to A.B. 106, the DUI law we have been asking for. The letter we sent out in January (Exhibit C), submitted for the Committee’s review today, is from the commission that was sanctioned by the [Nevada] Supreme Court. I chair this commission, which includes many judges, district attorneys, and defense attorneys. To try to make different changes to domestic battery, DUI, and other mandatory minimum sentencing requirements to make them work better is the charge of our commission that the [Nevada] Supreme Court sanctioned.
If you have the second page of the letter I sent out in January, it says, “The commission recommends the return of 24 hours of community service, rather than 48 hours, for first offenders who successfully complete a substance abuse program.” As I heard Laurel Stadler from MADD speaking to a person when I came in this morning, say, “This is generally what happens. When a person successfully completes a program, we give them that carrot to complete the program by cutting down the penalties.” For over a decade that was in there and for some reason it got changed to 48 hours, which is what people typically get if they do not even take a program, is 48 hours of community service, so that is the reason for that.
The second part of this is another amendment, which reverts the language [to the] original version of the law from the 1980s that would allow judges the discretion to impose a fine or community service for a second DUI rather than mandating both. It is the commission’s belief that it would result in greater compliance by the defendants. Currently, there are so many conditions imposed, but I think the one that was added about seven or eight years ago, to send people to the victim impact panel, has probably had the most impact on people of all the terms and conditions set down. Currently, there are so many conditions imposed that they often become overwhelmed and fail to complete the requirements; we end up having to put them in jail and costing the taxpayers money. Those are the only two things that we are asking for changes on the DUI bill this time. Monday, we will be here with the domestic battery changes; there will be quite a few more for that.
Judge John Tatro, Justice of the Peace, Carson City Justice/Municipal Court, Department 2:
I concur with Judge Willis, in that the most important thing is allowing us to reduce the community service hours on the notice of election. That way, if we know somebody is an alcoholic on a first offense and they need this program, we can push them into it and then they have the incentive. It just makes it easier to get somebody into the program, and hopefully get somebody on the track of quitting drinking and not driving drunk.
Assemblyman Mabey:
Just a couple of questions. How does a person typically do community service? And I did not really understand why 48 hours is so difficult. Could you explain that to me again?
Judge Robey Willis:
Forty-eight hours is what you get on a first offense for a person who does not go into a treatment program. Typically, it is two days in jail, which is 48 hours, or 48 hours of community service. Obviously, on a first we would rather have people helping the community. We get doctors such as yourself that may help or a dentist within their profession doing their community service. We have had dentists doing free dentistry work, and so on. But the reason that we cut it back to where it originally was, in the original bill when it came out in the 1980s, for over a decade as Judge Tatro and I both alluded to, is give them that “carrot,” cut their penalties in half if they successfully complete the program. A yearlong alcohol treatment program is typical. It can be as minimal as six months, but it is typically a year. They spend all that money and all that time and get themselves dried out and on the right track, most people feel as though there should be something at the end of the road for them so that they do not have to do as much as other people on the DUIs.
Judge John Tatro:
On a second offense, it is cut in half. The community service is cut in half as an incentive; that is in the law. This is kind of a disparity; we are just trying to clean it up. On a second offense, it is cut down; we cut the amount of community service hours from 100 to 50. So it gives the person an incentive to do well in the program; at the end of the program they will only have to complete 50 hours of community service. We are just trying to make the first on the same level and make it fair.
Assemblyman Conklin:
You have mentioned the idea of the court is that people get cleaned up so that they are not drinking and driving anymore. I am a little concerned because it is my interpretation that we have a lot of repeat offenders in the state of Nevada. I understand you wanting to shrink this to 24 and put them through the program; I think that is great for first offense. But when we get that second and third offense… I am sure you are very aware of the loophole in seven years in felony DUIs; we are going to try to clean that up tomorrow. I am curious to get your opinion on whether the program that we have working or do we truly have a lot of repeat offenders out there driving, killing people.
Judge John Tatro:
We do have a lot of repeat offenders and that is why we want to have an incentive on the first offense to get them into a program, because programs do help. We see people come in that are raging alcoholics on a first offense DUI; they have probably driven drunk a thousand times before they get arrested. They come in at a 2.5 and they obviously have a serious problem. One of the problems is that they could kill somebody and the other problem is that they are alcoholics; their lives are a mess. This is the first time in the system, the first time for them to go into any treatment, and we are hoping that by reducing this we can get more first offenders into that to cut down on the recidivism, that second offense.
Judge Robey Willis:
Assemblyman Conklin, to dovetail on what Judge Tatro said, you have a bill coming up to try to clean this up, having a felony DUI person, and I think that is what you are referring to, right? “Once a felony, always a felony.” Obviously, that is needed, as far as I am concerned. That is a decision you are going to have to make financially and in other ways. Why should a person who gets out of prison on a felony and a few years later gets another DUI, why should that be treated as a misdemeanor again? We discussed this at our commission, but our charge was just to look into misdemeanors. Most of the people, when we discussed it at the commission meetings, were in favor of “once a felony, always a felony.” But like I say, we were not to give recommendations on felonies. Personally, I think that is right, and it should be on domestic batteries, too. If you went to prison on three domestic batteries, my God, why should you come back on a fourth? But nonetheless, why should you start all over again with a misdemeanor on a fourth on either one of those kinds of charges?
Assemblyman Conklin:
As a follow up to that, I want to reask or restate my question a little differently. We have two sets, some take the program, some do not; you are offering this as an incentive. Those that actually go through your six-month to yearlong program, what is the recidivism rate on those folks? Do we see them back again in court a year, two years, three years down the road? Or do we have a really high success rate?
Judge John Tatro:
We have a really high success rate. We do see some of them back. We do have repeat offenders. However, our feeling is that the people who go through the program, of those people, probably 70 to 80 percent do not come back. I do not have those actual figures. That is just in our court and a glimpse of Carson City; statewide, I do not know what it is. I certainly think that it slows down the recidivism if they go through treatment.
Assemblyman Horne:
Just for clarification, on page 2 of the bill, your new language, community service for second offense, you have “order him to perform an equivalent number of hours of community service.”
Judge Robey Willis:
An equivalent number to the fine, yes. It is an “either/or” on the fine, because they do either the fine or the community service. It says, “a fine not less than $750 or more than $1,000 or order him to perform an equivalent number of community service [hours] while dressed in distinctive garb.” That is an “either/or” situation rather than “and” because on a second offense, virtually all of them are in treatment and we have these other things going for them. Probably 90 percent are in treatment now. But if we load them up with fines and community service and treatment and victim impact panel and go on and on forever. That is why we said “or” in there.
Assemblyman Horne:
What would be defined as an “equivalent?” Is it 50 hours, 100 hours equivalent to what?
Judge Robey Willis:
In different communities it is different amounts. I see what you are saying, as far as community service.
Assemblyman Horne:
How much an hour is it?
Judge Robey Willis:
On a $1,000 fine, it would be 100 hours of community service in Carson City at $10 an hour.
Assemblyman Horne:
So is this scheduled somewhere else?
Judge Robey Willis:
Different communities have different amounts, but they are right around that amount, anywhere from $7 to $10, but that is about what it is on community service. Assemblyman Carpenter and I have worked for years on getting people into community service in this state rather than other things to try to help their community, and that is another thing we would like to do here.
Assemblyman Carpenter:
I do not know what the statistics are now and it would be interesting to do some research to see if we can find them. It used to be that the people who came back the second time were 10 percent of the ones that were caught the first time. Then 10 percent of the second timers went to the third time. I do not know whether that is still the same or not. What this law has really done [is affect the] social drinkers. If caught once, you will not see them back again. It would be interesting if there were any statistics of really how this has helped, but that used to be the situation. The only question I have is on page 6; when you say “one half of the hours,” will that mean 50 hours?
Judge Robey Willis:
Yes, that is what we are saying. We would cut it down to half of the hours. It would be 50 hours rather than 100 if they were successful on that second. That is what we are talking about. In fact that is basically what is says now, but we tried to carry it through from the first part to that, and that is the reason for it. [Relating to] Assemblyman Carpenter’s other [question] what he was talking about, he is absolutely right. We just do not get too many social drinkers on a second; you are absolutely right. The social drinkers, if they get nailed, they are not coming back. They will take a cab or have a designated driver or something, and it has stopped a lot of the social drinkers from even thinking about drinking and driving. This law has been good for that since the 1980s.
Assemblywoman Angle:
I have a question on page 2, again, with this new language, where you have stricken “unless the court finds that extenuating circumstances exist.” Does this take away some of your discretion? I am just questioning why that was struck.
Judge Robey Willis:
In striking that part of [the language], it probably would be best to leave that part in; it really would. The whole [subsection b] 3 was taken out. “Unless the court finds that extenuating circumstances” is always good for a judge to have, but we already have that in the Nevada Revised Statutes in Chapters 4 and 5, saying that under certain circumstances you can do certain things in the interest of justice for judges, so that pretty well takes care of that anyway.
Laurel Stadler, Lyon County Chapter Director, Mothers Against Drunk Driving (MADD):
I am here in a neutral position on this particular piece of legislation. We generally do not ever like to see penalties reduced for DUI offenders, but we like to think that we are reasonable. As far as the change on page 5, reducing the 48 hours to 24, that does fall in line with what has generally been done in halving the penalties for those that complete the notice of election program; and also, the page 6 language, [related to] half of the hours of community service.
As far as page 2, making it an “either/or” on the fine and the community service, I would ask if someone could check with the Office of Traffic Safety, because part of our funding is tied to which DUI offenders get which sanctions as far as meeting some federal guidelines. There are some laws that we have to have, in place and in effect, on some of these offenders to qualify for certain federal funds. I am not sure if the fine and the community service is one of those stipulations, but I know there is a list of different sanctions that we have to have “x” number in place to qualify for certain funding.
Vice Chairman Oceguera:
We will find that answer out for you.
Laurel Stadler:
To answer Assemblyman Carpenter, when we first started with MADD in this state about ten years ago, across the nation we could count on a 50 percent recidivism rate—of those that got a first, 50 percent would get a second. In recent communications, I have read that [those statistics] have dropped to about 30 percent, so there is some progress being made in this area of recidivism on a national basis. I believe that is probably fairly consistent in our state also. That is the good news on that front. I am open for any other questions.
Vice Chairman Oceguera:
Is there anyone opposed to A.B. 106? Any opposition to A.B. 106? Any further questions? We will close the hearing on A.B. 106.
Mark Gibbons, Associate Justice, Nevada Supreme Court:
[Introduced himself] I am also here as a former Chief Judge of the Eighth Judicial District Court through December 31, 2002. I am here on both S.B. 88 and A.B. 133.
Vice Chairman Oceguera:
We will open the hearing on S.B. 88.
Senate Bill 88: Allows district judge to transfer certain civil actions to justice’s court under certain circumstances. (BDR 1-610)
Justice Gibbons:
Senate Bill 88 was proposed by the Eighth Judicial District Court; it relates to procedure of transferring cases from district court to justice court. If I could just briefly explain the background, Judge Saitta and Judge Hardesty may have come comments on it as well. Right now, as you know, the jurisdictional limits of the district court are amounts above $7,500. At present, if a case is filed in justice court and it has a value of more than $7,500, there is a procedure whereby the statute of limitations has been tolled to transfer the case to district court. The case is then assigned a district court number, and it proceeds forward in district court.
However, there is no such procedure for the reverse. We do have situations when cases are filed in district court where the value of the case is $7,500 or less and there is no mechanism to transfer the case to justice court. The problem that creates is that many times it is an automobile accident, there is a two-year statute of limitations, and by the time the court makes the determination that the value of the case is $7,500 or less, the district court can only dismiss the case. Then, if the litigant refiles in justice court, the case is barred by the statute of limitations. [This] especially happens with pro se litigants who just do not understand the difference between the two courts. We are proposing this bill to remedy that situation when there is the reverse procedure of going from district court to justice court.
I might add, in my experience, and I do not know how Judge Saitta and Judge Hardesty feel about it, this rarely happens. This is not a common situation in district court; I do not think there will be many cases, at least in my experience in Clark County, that would be transferred back to justice court. As far as filing fees, the filing fees are paid in district court initially and they go to the county’s general fund. We are suggesting that this bill be adopted and have the cases transferred back to justice court if the district court deems that it is appropriate. Then there should not be any additional filing fee assessed in justice court as well if they are transferred back.
Nancy M. Saitta, District Judge, Eighth Judicial District Court, Department 18, Clark County:
[Introduced herself.] I would merely echo what Justice Gibbons has indicated. I think it is significant for you to perhaps be reminded of what Justice Gibbons said. In terms of a caseload being turned back down to the lower courts, it is minimal at best. Our hope is that by creating this opportunity or avenue to refer these very few cases back to the lower court, we protect the rights of the individuals who might otherwise be harmed and lose their opportunity altogether to have their case heard before any court. It is really a housekeeping matter.
James W. Hardesty, District Judge, Second Judicial District Court, Department 9, Washoe County:
[Introduced himself.] I will just echo the comments of my colleagues. It primarily benefits the litigant who got confused as to which court they were supposed to be in.
Assemblyman Carpenter:
To anyone on the panel, I understand the first section, but would you explain to me why all these other sections are in here where it says “exceeds $7,500”? Why do we have to have all that lingo there?
Judge Saitta:
Assemblyman Carpenter, you have pointed out what is undoubtedly perhaps the most efficient… it is an error in our drafting, to be quite frank with you. Upon review of the remaining sections, we have discussed this only briefly, based upon the questions and concerns you expressed to one of our court administrators. I think you are absolutely correct; the language that is contained in all of those definition-like sections following Section 1, merely identify the types of cases that can be referred. It is based upon the consensus of all of us here that an appropriate amendment or deletion should be made to this section if so desired to make it simpler and to take out that which you are questioning. They are merely definitional sections.
Judge Hardesty:
Assemblyman Carpenter made a good point. We ought to just abolish all of paragraph 2; it is unnecessary.
Assemblyman Carpenter:
I am a simple guy and I like simple things. I guess it is a bill drafter’s question.
Vice Chairman Oceguera:
We will put it down for the work session.
Joe Tommasino, Staff Attorney, Justice Court, Las Vegas Township:
[Introduced himself and provided a written copy of his remarks (Exhibit D).] I am here with the court administrator, Marguerite Creel. We are here to testify on S.B. 88. I want to emphasize that we fully support the goal of this bill. As already mentioned, there is a gap in the law that the case cannot currently be transferred down to justice court. The substantive issues with the bill have already been addressed and why it is needed.
But we do have some concerns about the language in the bill, about the methods used to effectuate the transfer, specifically, the part about the filing fees. In Section 2 of the bill, it explicitly states that if an action is transferred to justice court, “a party to the action may not be required to pay a new filing fee to the justice’s court as the result of the transfer of the action.” We feel that this language is not consistent with existing law, because NRS 19.013 requires a $42 fee when a case is transferred up to district court. So we would just request that the same fee should be charged when a case is transferred down from district court.
We also wanted to emphasize that we think the bill should clarify that the parties to the transferred case retain their right to a jury trial in justice court, if it is requested in a timely manner under the justice court rules. We do not think that the bill addresses this in enough detail. Also, to echo the concerns about paragraph 2 of Section 1, we do not need to enumerate all those specific actions.
One of our last concerns is that when a case is transferred from district court to justice court, we feel that the district court judge should order that the plaintiff’s recovery must be limited to $7,500 or less; otherwise, problems might ensue. For example, Section 1 of the bill currently states that the district court judge can transfer original jurisdiction of the action to justice court. If the plaintiff files a claim for $15,000 in district court and the case is then transferred down to justice court, it is not clear if the justice court would then have original jurisdiction over the action for $15,000. If the justice court is to assume that the amount in controversy was intended to be lowered to $7,500, it is not clear if the plaintiff can later amend the justice court complaint to a higher amount and then request that the case be transferred back up to district court. We feel that if the district court makes an order to limit recovery to $7,500 or less, these problems would not arise from the cases transferred to justice court.
Finally, we suggest that the bill should incorporate language from NRS 66.070 that currently applies when a case is transferred up to district court. The statute provides that from the time of filing the pleading or transcript with the Clerk of the District Court, the district court has the same jurisdiction over the action as if it had been commenced in the district court. We think a similar provision should apply at the justice court level. For example, a provision could be added to state that from the time of filing the pleadings or transcript with the Clerk of the Justice Court, the justice court has the same jurisdiction over the action as if it had been commenced in the justice court.
To summarize, we are in complete agreement that district court should be authorized so that cases can move freely between the two courts without creating any statute of limitations problem. We do anticipate that we would need additional clerk staff if there were more cases coming down from district court. We are suggesting these structural changes to make the bill easier to administer. If you would like us to provide any statistics or information, we would be happy to do so.
Vice Chairman Oceguera:
This bill is coming over from the Senate. Were you involved in the discussions on the Senate side?
Joe Tommasino:
No, we only forwarded our comments to county administration. I guess they did not adequately address these issues.
Vice Chairman Oceguera:
Interesting. Any comments from the three-judge panel?
Justice Gibbons:
I appreciate the comments from Mr. Tommasino and the justice court, but I think they are dealt with. First of all, if the case is transferred to the justice court, the cap by law now is $7,500; the justice court has no jurisdiction to award more than $7,500. Certainly, if the district court has sent the case to justice court, I cannot imagine a situation where somebody would ask to send it back. That is the whole point: to resolve that as far as the dollar amount. As far as the demand for jury trial, there are time limits to demand a jury trial under Rules of Civil Procedure 38 and 39, both under justice court and district court Rules of Civil Procedure. So if those time limits have complied with the demand for jury trial, I certainly think it would go to justice court as well. If the parties have not made a demand for jury trial within the time limit, I do not think the case should be transferred to justice court and then allow a new demand. It needs to be done within the specific time limits set forth in those rules. Lastly, I understand the comments made. Again, we were in the Senate and we did not hear any of these issues. I do not think there is a major problem with it. Again, I reiterate that on the filing fees, it would be so minimal as far as the number of cases transferred that it would just require somebody to pay twice if they had to pay two filing fees. We would leave that up to the Committee’s discretion.
Vice Chairman Oceguera:
Is there anyone else speaking in favor of S.B. 88? Seeing none, and no opposition, we will close the hearing on S.B. 88 and open the hearing on A.B. 133.
Assembly Bill 133: Revises provision governing duties that may be performed by masters in district courts. (BDR 1-602)
Justice Gibbons:
Assembly Bill 133 is proposed by the Eighth [Judicial] District [Court]. Right now we have the existing statute, NRS 3.245, which allows for the appointment of masters in certain proceedings in district court. The district court is asking that this statute be expanded to have the county commission authorize the employment of hearing masters to handle certain criminal matters.
Again, what we have in mind is this. Right now in the Eighth District, and I think the Second [Judicial] District [Court] has similar problems, many times we have 30-page criminal calendars in the morning, which take the entire morning, 9 [a.m.] to 12 p.m. If you are in a jury trial, the jury only can hear cases in the afternoon. It lengthens these trials, makes it more expensive to the county, and is more inconvenient to the jurors because they only get a half day of work in.
What we are proposing is, if the county commission feels it is appropriate, masters could be hired to basically take pleas and handle certain rudimentary matters in district court. People plead guilty or not guilty. If they plead not guilty, they are given a trial date. If they plead guilty, then a sentencing date is set. Any sentencing is done by a district judge; any probation revocations are done by a district judge. These are simply more perfunctory matters that can be done by a master to free up the district courts to have more time for trials. We feel it would be more efficient for jurors and more cost-effective for the counties as well in the long run.
Again, the way the proposed statute is worded, the [Nevada] Supreme Court would adopt rules on how this would be adopted, and it would be up to the counties if they want to authorize these hearing masters; it is their choice. This would be enabling legislation to allow them to do that.
Judge Saitta:
I would again echo the comments of Justice Gibbons, but would point out to you that by allowing each county to determine whether or not there is a need for the use of masters in, as the Justice has indicated, rudimentary matters, we would also be bringing our daily activities in the district courts more in line with a number of the suggestions that came out of the jury commission report. One of the major complaints was that jurors are often brought to the courthouse early in the morning for a 9 a.m. call. We do not know what our morning calendar will look like because matters can be put on the calendar, as you well know, in very short notice on the criminal side. If we anticipate our jury being able to start at 9:30 a.m. and then run into an expanded calendar, what we have is a number of jurors who are waiting for no good reason but simply because our courtroom is unavailable while we are dealing with these matters. These are matters that are fairly simple in terms of the taking of a plea, the setting up of trial.
I am not minimizing the significance of being sure that all rights are extended to the individuals so that they know what they might be entering a plea to and what the ramifications thereof are, but I will tell you that it certainly does create a better opportunity for the time of a district court judge to be used in the manner I believe that we were designed to be serving the public.
Judge Hardesty:
Our court is faced with a very unique situation. According to the most recent annual report of the Nevada Supreme Court, the caseload per judge in Washoe County increased 23.7 percent in one year. Of that caseload increase, about 18 percent increase occurred in criminal cases. We know that our county cannot afford another district court judge. The most recent Family Court judge that was added, when you add on all the hard costs for new courtrooms and the like, ended up [costing] about $1 million. We need to develop an innovative way to deal with our caseload and our docket. This is a very important bill to allow the chief judge of our district to be able to deal with our caseload, a caseload that is just off the charts. The use of masters will be a critical, in fact, vital, element in our ability to be able to deal with these caseloads.
In the Second Judicial District, not unlike Clark County, I personally begin my criminal calendars at 8:30 a.m. in the morning. We have anywhere from 30 to 50 cases each morning between arraignments, sentencings, probation revocations, and the like. This impedes our ability to handle many other cases that we could get to. The use of masters is a very critical piece to the overall administration of justice. As you may know, in Washoe County we use masters; we currently have five in Family Court. They handle all manner of matters. If we did not have those masters, we could not function in Washoe County. We found them to be very valuable tools. We would strongly endorse this bill and hope you will do the same.
Assemblyman Horne:
I am supportive of the rationale of this bill. What concerns me is the lack of the defined duties that this hearing master would have. Would that be outlined by the [Nevada] Supreme Court or would the Legislature need to do that? It concerns me because we would not want them going into areas that the district judges were elected to do.
Justice Gibbons:
To answer Assemblyman Horne’s question, the [Nevada] Supreme Court would set the rules [as to] what the masters could do. We anticipate at this time it would be basically accepting pleas and setting revocation dates for probation revocation hearings. Masters are not going to be doing sentencing and things that are reserved for district court, or making findings regarding revocation of probation. That is the intent behind the bill.
Judge Hardesty:
This process is not unlike what takes place in federal court. Magistrates are used all the time in many matters. Their duties are extensive, and the federal district court judges frequently refer matters down to magistrates, including trials in some cases. I think this is an issue that needs to be discussed thoroughly with the [Nevada] Supreme Court in the rule-making process because there are some excellent opportunities for how to efficiently use the time. All of us recognized the importance that most of these functions need to be performed by district court judges, but there are many functions that can be delegated, including discovery issues, potentially. I would urge the Committee to leave that opportunity or that decision to the Supreme Court and their rule‑making authority.
Assemblyman Horne:
In federal court the magistrates are appointed as well, but are hearing masters hired or are they appointed? I do not think that they are elected, are they?
Judge Hardesty:
We appoint our masters; that is, the Second [Judicial] District does. The funding, of course, comes from the county. They are not elected, they are appointed. But it is part of our process, a very thorough process that incorporates the Bar Association as part of the selection panel. It is a very extensive process in the master selection.
Vice Chairman Oceguera:
I too am supportive of the concept and I have seen firsthand how this works, but even though this is enabling language and then we have someone in the court system appointing these masters, are you going to come back looking for money? Although this is a policy committee, I am wondering about the fiscal issues here.
Judge Saitta:
The question about how the masters are chosen is an important question. To be sure that you understand, it is an open application process that is reviewed by members of the bench, of administration, and of the bar. With respect to any fiscal impact, with all due respect, I believe, we are not asking, nor will we be returning; it is paid for by the county. But more importantly, by allowing us to defer appropriate matters to a master, it would certainly keep us from coming back to you in another session asking for more judges. One way or another, we have to handle these cases. The cost is essentially nothing, because we will be looking to our county to handle that. More importantly, the cost of putting a judge in to do these types of things is astronomical by comparison.
Judge Hardesty:
You are right, it has a fiscal impact, but it is a very positive fiscal impact. As mentioned before, the addition of Department 12 in the Second Judicial District ended up costing Washoe County about $1 million between courtrooms and many other things. The ongoing costs, the support staff for a district court judge paid for by the county includes law clerks, judicial administrative assistants, bailiffs, and the like, all of which ring out at about $500,000 a year. A master in Washoe County is about $103,000 to $104,000 at the top end of the range. We start them around $79,000. They do not require any extensive support staff; we have one secretary who serves four masters in the Family Court. It is a very significant fiscal impact, but positive for the county.
There is no fiscal impact to the state until we come back and ask for a district court judge, and that impacts you severely for that salary and retirement benefits. We view this as a very important strategy for helping save both the state and the county money. We cannot change the caseloads, and in our case, we are expecting another 21 percent increase in caseload this fiscal year in Washoe County; that is [about] 44 percent in two years in Washoe County. We are hoping not to have to request a district court judge. Without master support we cannot deal with that caseload.
Assemblyman Gustavson:
I too am concerned about the duties of the court masters. I have had complaints from some of my constituents. I have been talking about the possibility of introducing a bill along the same lines about the duties of the court master. According to this bill, the [Nevada] Supreme Court is going to have that decision as to what the duties are going to be. But I am real concerned because of what I have heard that maybe this body needs to have more of a say as to what these masters might do, if they start to step over the line to the duties the judge himself should be doing. These are some of the complaints I have had.
In reference to TPOs [temporary protection orders], for example, you say the masters can take pleas, listen to, and take applications for TPOs. One complaint was that the court master was signing the TPO and this TPO was looked at by another state and they assumed a judge signed this. I have not seen this in writing, but this is what I have been told. There has been some confusion there, so I am concerned about these court masters and what their duties are going to be. As elected officials, the judges, you have certain duties, and I do not want to see these extremely important duties turned over to court masters. So my concern is whether the Supreme Court is going to have a say as to what the duties are, or [will] this body have that decision?
Judge Hardesty:
If any of your constituents or you have a concern or a complaint regarding the Second Judicial District or any of our masters, I would urge you to pick up the telephone and I will address it immediately, by case. Additionally, we have an ombudsman program that encourages people to register complaints. If they are concerned about making their identity known to a judge, they can do this anonymously and we will investigate that complaint. In our district, there is no master that functions except with the approval and the sign-off of the district court judge. This is not an effort on our part to delegate our duties or responsibilities; if anything, we are delegating some limited functions knowing full well that some master could put us in an awkward position. But they are our employees, we supervise them, we are going to direct what they do, we are responsible for them, and we are responsible for their actions and what they do. It is not an effort on our part, and I am sure it is not an effort in the Eighth Judicial District, to delegate duties away from what we have. We supervise what they do and we review what they do, and I will add that in the Family Court master situation, we sign off on all master orders. A district judge signs off on all master orders and reviews them.
Assemblyman Gustavson:
I realize that the court masters play a very important part, and I see a need for that and I pretty much support them. But I just have that concern and others do, too.
Judge Hardesty:
I want to encourage you, if you have constituent complaints or concerns, to pick up the telephone or ask them to call me or our court administration and we will get on it. And if they are concerned about disclosing their identity, we have a mechanism in place for them to register without disclosing their identity.
Assemblyman Carpenter:
I think this is a very good discussion because I thoroughly agree that we do need masters to “take the load off.” But maybe you could explain what the criteria is when you appoint a master; who are you looking for, who might they be?
Judge Saitta:
I had the pleasure of actually participating in one of those selection processes for a master in our Family Division down in the southern part of our state. They must obviously be attorneys. Most often the individuals who actually apply for these positions are essentially specialists, although our bar does not allow us to give an individual that title. They are basically people who work in a particular area, for instance, in the Family Division. Those are the folks that we see in application. Applications I reviewed were ten-page applications that talked about not only their legal qualifications, but why they felt they were qualified for the position. Then as a member of a committee with numerous others, not only did I review that application, but also the exact same application went to every single member of the committee for review.
We assessed them on a numbered point-by-point basis so that once we made a determination as to the top five that we would interview, it was done without any knowledge of anybody else on that committee knowing that I gave someone a five in this particular area and someone else may have given that individual a one. All the numbers were averaged together, so it was a very fair, non-personal process for the selection, and then the top five were brought before us for actual personal one-on-one interviews, where we were able to ask them questions not only about qualifications, but also if they understood what their job would be in this capacity and understood the nature of the responsibility that would go along with that position. From my standpoint, it was a pretty impressive process that they went through, very rigorous, I might add.
Judge Hardesty:
That almost mirrors the process that we use in the Second [Judicial] District. We have recently appointed three new masters in the Family Court, all using that process. They were all expected to have expertise in the family court area, and particularly the areas the masters would be designated to. What is significant is that those masters were subjected to a more rigorous scrutiny than maybe a person who would be a candidate for a judge. They are faced with extensive questioning by a panel of somewhere between five to seven experienced judges, court administrators, and lawyers, who will confront them with very rigorous questioning, not only about their attitudes and views about being a judicial officer, but also about their professional background. These are also lawyers who are known to us and known to the community. Their integrity has already been assessed by the people they have previously appeared before, the judges who would be making the selections. So I think if anything, the masters selection process is much akin to the selection of a replacement for a judge by the judicial discipline committee or Judicial Selection Commission, where that Commission is able to look at writings of the judge. We do the same thing; we ask them to submit writing samples and we also give the bar an opportunity to provide input if anybody has any concerns about integrity or reputation. So it is a very thorough scrutiny of a master who is selected.
Assemblyman Brown:
Are these full-time positions or would you be looking at hiring one master that would handle all departments, criminal loads, and those respective types of cases? Or would each department have their own master? Secondly, for Judge Hardesty, in Washoe County, does each judge have civil and criminal calendars, or are there some that are exclusively criminal? As a civil practitioner, it is a blessing for us as well as the civil litigants. I had one trial that lasted seven days that could have been wrapped up in four, but we had such problems due to calendaring, scheduling, unforeseen issues, and we were sitting around for hours. I feel very badly that it cost litigants so much for everyone sitting in the hallway waiting for a courtroom to clear. This is an absolute win-win in those situations.
Judge Hardesty:
We have four full-time masters and two part-time masters in Family Court. I would urge that you let us make that assessment based on the workload need. Whether we need a full-time master or a part-time master is something we need to evaluate ourselves and then make a presentation to the county commission. The county commission in Washoe County, which basically at this moment has no money, is going to scrutinize any request we make for personnel. So whether we would use a full-time or part-time depends upon the workload we have assigned.
With respect to the issue of our district, all the general jurisdiction judges handle both civil and criminal dockets. The example you used was a very good one. When I am in a jury trial and I have my criminal docket to deal with, what I try to do is set my criminal calendar starting as early at 6:30 a.m. so that I can try to keep that jury trial on pace. I thought this was a great idea; as a private practitioner I work from 6:30 a.m. until many hours late at night, and I still do as a judge. The problem that you do not realize, though, is the impact that it has on the jail system, the bailiffs, the clerks, and the overtime all that causes in order to accomplish it. And so, the public sits back and looks at you as a judge and says, “Why don’t those judges come in at 5:30 a.m. or 6 a.m. and stay until midnight?” The fact of the matter is we do. In fact, Judge [Deborah E.] Schumacher [Second Judicial District Court, Family Division, Department 5] sends me e-mails at 3 a.m. on Sunday. But you have such an impact on the rest of the system; it usually creates overtime. It is very difficult to start those criminal calendars, as much as many of my colleagues, including the Eighth [Judicial District], would like to do that, we are forced to start those calendars no earlier than 8 a.m. or 8:30 a.m. to get the defendants over from the jail, and so forth. And as you point out, that backs up the whole system. That is what this [bill] is intended to alleviate.
Judge Saitta:
We anticipate [needing] at least two masters, full-time. In fact, at our still‑under-construction regional justice center, we actually have two courtrooms that have been designated as arraignment courtrooms where these masters would be used. We have a little different setup as to how we divide out our work, as you know with respect to the number of judges that hear full time. Some judges in our district hear a full-time criminal calendar, three others and I hear what is called a split calendar, part civil and part criminal, and there are some who hear just civil. For me to be able to give you some greater explanation as to the real numbers of how we would do this, I know that we need two right now. If we had more courtrooms I know that we could use four or five full-time, very full-time masters. I would also point out that in addition in the Eighth Judicial District, we have tremendous masters in our Family Division who have been working for a number of years, helping out with that caseload. We also have a complex division now in the Eighth Judicial District Court where we use masters to handle preliminary matters.
I think it is important for the record to note, in response to Assemblyman Gustavson’s question, that not only are the masters supervised by a judge, and their orders formally and finally approved by a judge, but last week in the Eighth Judicial District Court we had a situation where a second review of a master’s order and a judge’s signature on that order came back because of an obscure issue that arose from that order and it was resolved within about ten minutes. So there is significant review and oversight. But we need four or five masters, very full-time, in Las Vegas.
Vice Chairman Oceguera:
Judge Hardesty, earlier you were talking about the qualifications and selection of candidates, and you said their reputation in the community was important. In the south, one way we rate judges is the RJ [Las Vegas Review-Journal] poll; I do not know if they do that in the north. Do you think they could be included in the RJ poll to see how well they are doing?
Judge Hardesty:
We have a bar review poll. Ours is not done by the newspaper; ours is done by the Washoe County Bar Association. I do not want to contrast the quality of the two polls because I am not that familiar with the RJ poll; I will simply say that the Washoe County Bar Association poll is a very thorough poll that evaluates all the judges on 24 categories of behavior and performance. We had proposed including the masters in the poll, and the Washoe County Bar Association was reluctant to do so, believing that since they were court employees there may be some HR [human resource] issues involved in subjecting a court employee to a public poll such as that. We are working on that. The judges in our district actually advocate that; it is the Bar Association that has been reluctant to do so. Also, the masters in our Family Court support that. What we proposed at the Family Court bench bar meeting last week, one of the things they are working on, is how to develop a mini-bar review or judicial review of masters. It would be modified from what the judges go through, but it would still provide for a bar review of our masters. And our bench supports that; we want that input.
Judge Saitta:
I echo the words of my colleague from the north about the desire of our masters to be put to some review process. I agree that there are HR issues; however, I would also note that our survey is done in coordination with our bar association as well. That matter has come before our board a number of times. I think it is a healthy thing and if in fact there was an appropriate means for that review to take place, I could support it absolutely.
Assemblywoman Angle:
I am going to go back to my colleagues on the caseload that would come before these masters, and just ask you if it would be something that is easily enumerated, and if so could we enumerate here in the law what those duties would be rather than leaving it up to the [Nevada] Supreme Court to decide? Could we say they are in charge of these kinds of things?
Judge Hardesty:
I would encourage you not to do that; let me explain why. When you put these things in the statute, then we have to come back every two years to change it to provide flexibility. I have been a lawyer for 27 years. During the first 22 years of my legal career, the judiciary was in a lot of turmoil for a variety of reasons. I think that our state should be very proud of the judiciary right now. Our [Nevada] Supreme Court is as positive-minded and as cohesive a group as I have ever seen. I submit the same is true with respect to all of the district court judges as well. The judiciary has been very positive in its efforts in managing its caseload. If you put these things in a statute, we lose the flexibility necessary to manage our caseload.
I would submit that two years from now, if we hired masters and we did not do the job correctly, and Assemblyman Gustavson has constituents come to you and say this operation is not working, then we should come before you and explain why we did not do it right. But trust the judges, especially this group of judges who are performing so well, let them do the job to do it correctly.
Let me give you a very good example. The judiciary, on its own prior to the 2001 Legislature, initiated a rule that established Business Court. Business Court was something that was initiated within the judiciary and by a rule of the [Nevada] Supreme Court. It was a task force jointly chaired by Supreme Court Associate Justice Robert E. Rose, Eighth Judicial District Judge Gene T. Porter, and myself. What has Business Court accomplished? Business Court in the Second Judicial District Court has had 105 cases in the 19 months that it has been in existence. Do you know that in 2002, we have a clearance rate of 89 percent of those cases? All I am saying is, let the judges run the judiciary and let us establish the rules, and if we did not do it correctly, and if you have concerns two years from now, then call us and let us explain why we did not do it right. But if you put it in the statute, we lose the flexibility to manage the judiciary, and would hope you would not handcuff us that way.
Vice Chairman Oceguera:
Is there anyone else who would like to testify in favor of A.B. 133? Seeing none, is there anyone who is not in favor of A.B. 133? Seeing none, are there any further questions? You do not get this esteemed panel very often. We will close the hearing on A.B. 133.
Any other matters to come before the Committee this morning? Seeing none, setting a new world record, we will adjourn the meeting [at 9:12 a.m.].
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman John Oceguera, Vice Chairman
DATE: