Senate Joint Resolution No. 5–Committee on Judiciary

 

(On Behalf of the Nevada Supreme Court)

 

February 25, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Proposes to amend Nevada Constitution to allow Legislature to establish intermediate appellate court. (BDR C‑607)

 

FISCAL NOTE:    Effect on Local Government: No.

                   Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

SENATE Joint RESOLUTION—Proposing to amend the Nevada Constitution to allow the Legislature to establish an intermediate appellate court.

 

1-1  Resolved by the Senate and Assembly of the State of Nevada, Jointly, That a new section, designated Section 3A, be

1-2  added to Article 6 of the Nevada Constitution to read as follows:

1-3  Sec. 3A.  1.  The Legislature may provide by law for

1-4  the creation of a Court of Appeals.

1-5  2.  If the Legislature creates a Court of Appeals

1-6  pursuant to subsection 1, then:

1-7  (a) The Court of Appeals must consist of three judges or

1-8  such greater number as the Legislature may provide by law.

1-9  If the number of judges is so increased, the Supreme Court

1-10  shall provide by rule for the assignment of each appeal to a

1-11  panel of three judges for decision.

1-12      (b) After the initial terms, each judge of the Court of

1-13  Appeals must be elected by the qualified electors of this state

1-14  at the general election for a term of 6 years beginning on

1-15  the first Monday of January next after the election. The

1-16  initial judges must be elected by the qualified electors of this

1-17  state at the first general election following the creation of

1-18  the Court of Appeals. The initial terms of the judges must be

2-1  staggered so that one judge serves for an initial term of 2

2-2  years, one for 4 years and one for 6 years. The initial judges

2-3  shall meet as soon as practicable after their election to

2-4  determine by lot the term of office that each judge will fill.

2-5  If there is an increase in the number of judges, each

2-6  additional judge must be elected by the qualified electors of

2-7  this state at the first general election following the increase

2-8  for a term beginning on the first Monday of January next

2-9  after the election. The Legislature shall provide for an

2-10  initial term of 6 or fewer years for each additional judge so

2-11  that one-third of the total number of judges, as nearly as

2-12  may be, is elected every 2 years. If the number of judges is

2-13  increased by more than one, the additional judges shall

2-14  meet as soon as practicable after their election to determine

2-15  by lot the term of office that each judge will fill.

2-16      (c) The Supreme Court shall appoint one of the judges

2-17  of the Court of Appeals to be Chief Judge. The Chief Judge

2-18  serves a term of 4 years and may succeed himself. The Chief

2-19  Judge may resign his position as Chief Judge without

2-20  resigning from the Court of Appeals.

2-21  And be it further

2-22      Resolved, That Section 1 of Article 6 of the Nevada

2-23  Constitution be amended to read as follows:

2-24      Section 1. The Judicial power of this State [shall be] is

2-25  vested in a court system, comprising a Supreme Court, a

2-26  Court of Appeals, if established by the Legislature, District

2-27  Courts[,] and Justices of the Peace. The Legislature may also

2-28  establish, as part of the system, Courts for municipal purposes

2-29  only in incorporated cities and towns.

2-30  And be it further

2-31      Resolved, That Section 4 of Article 6 of the Nevada

2-32  Constitution be amended to read as follows:

2-33      Sec. 4. 1. The supreme court [shall] and the court of

2-34  appeals, if established by the legislature, have appellate

2-35  jurisdiction in all civil cases arising in district courts, and also

2-36  on questions of law alone in all criminal cases in which

2-37  the offense charged is within the original jurisdiction of the

2-38  district courts. The legislature shall fix the jurisdiction of the

2-39  court of appeals. The supreme court [shall] and the court of

2-40  appeals also have power to issue writs of mandamus,

2-41  certiorari, prohibition, quo warranto [,] and habeas corpus

2-42  and also all writs necessary or proper to the complete exercise

2-43  of [its appellate] their jurisdiction. Each [of the justices shall

2-44  have power to] justice of the supreme court and judge of the

2-45  court of appeals may issue writs of habeas corpus to any part

3-1  of the state, upon petition by, or on behalf of, any person held

3-2  in actual custody [,] in this state and may make such writs

3-3  returnable [, before himself] before the issuing justice

3-4  or judge or the [supreme court,] court of which the justice or

3-5  judge is a member, or before any district court in the state or

3-6  [before] any judge of [said courts.] a district court.

3-7  2.  In case of the disability or disqualification, for any

3-8  cause, of [the chief justice or one of the associate justices] a

3-9  justice of the supreme court, [or any two of them,] the

3-10  governor [is authorized and empowered to designate any]

3-11  may designate a judge of the court of appeals or a district

3-12  judge [or judges] to sit in the place [or places of such] of the

3-13  disqualified or disabled justice . [or justices, and said judge or

3-14  judges so designated shall receive their] The judge

3-15  designated by the governor is entitled to receive his actual

3-16  expense of travel and otherwise while sitting in the supreme

3-17  court.

3-18      3.  In case of the disability or disqualification, for any

3-19  cause, of a judge of the court of appeals, the governor may

3-20  designate a district judge to sit in the place of the disabled or

3-21  disqualified judge. The judge that the governor designates is

3-22  entitled to receive his actual expense of travel and otherwise

3-23  while sitting in the court of appeals.

3-24  And be it further

3-25      Resolved, That Section 7 of Article 6 of the Nevada

3-26  Constitution be amended to read as follows:

3-27      Sec. 7.  The times of holding the Supreme Court , the

3-28  Court of Appeals and the District Courts [shall] must be as

3-29  fixed by law. The terms of the Supreme Court [shall] must be

3-30  held at the seat of Government unless the Legislature

3-31  otherwise provides by law, except that the Supreme Court

3-32  may hear oral argument at other places in the state. The terms

3-33  of the Court of Appeals must be held at the place provided

3-34  by law. The terms of the District Courts [shall] must be held

3-35  at the County seats of their respective counties unless the

3-36  Legislature otherwise provides by law.

3-37  And be it further

3-38      Resolved, That Section 8 of Article 6 of the Nevada

3-39  Constitution be amended to read as follows:

3-40      Sec. 8. 1. The Legislature shall determine the number

3-41  of Justices of the Peace to be elected in each city and

3-42  township of the State [,] and shall fix by law their

3-43  qualifications, their terms of office and the limits of their civil

3-44  and criminal jurisdiction, according to the amount in

4-1  controversy, the nature of the case, the penalty provided [,] or

4-2  any combination of these.

4-3  [The provisions of this section affecting the number,

4-4  qualifications, terms of office and jurisdiction of Justices of

4-5  the Peace become effective on the first Monday of January,

4-6  1979.]

4-7  2.  The Legislature shall also prescribe by law the

4-8  manner, and determine the cases , in which appeals may be

4-9  taken from Justices and other courts. The Supreme Court, the

4-10  Court of Appeals, the District Courts[,] and such other

4-11  Courts[,] as the Legislature shall designate[, shall be] are

4-12  Courts of Record.

4-13  And be it further

4-14      Resolved, That Section 11 of Article 6 of the Nevada

4-15  Constitution be amended to read as follows:

4-16      Sec. 11. The justices of the supreme court , the judges

4-17  of the court of appeals and the district judges [shall be] are

4-18  ineligible to any office, other than a judicial office, during the

4-19  term for which they [shall] have been elected or appointed . [;

4-20  and all] All elections or appointments of any such judges by

4-21  the people, legislature [,] or otherwise [,] during said period

4-22  [,] to any office other than judicial [, shall be] are void.

4-23  And be it further

4-24      Resolved, That Section 15 of Article 6 of the Nevada

4-25  Constitution be amended to read as follows:

4-26      [Sec:] Sec. 15. The Justices of the Supreme Court , the

4-27  Judges of the Court of Appeals and the District Judges

4-28  [shall] are each entitled to receive for their services a

4-29  compensation to be fixed by law and paid in the manner

4-30  provided by law, which [shall] must not be increased or

4-31  diminished during the term for which they [shall] have been

4-32  elected, unless a Vacancy occurs, in which case the successor

4-33  of the former incumbent [shall] is entitled to receive only

4-34  such salary as may be provided by law at the time of his

4-35  election or appointment . [; and provision shall] A provision

4-36  must be made by law for setting apart from each year’s

4-37  revenue a sufficient amount of Money, to pay such

4-38  compensation.

4-39  And be it further

4-40      Resolved, That Section 20 of Article 6 of the Nevada

4-41  Constitution be amended to read as follows:

4-42      Sec. 20.  1.  When a vacancy occurs before the

4-43  expiration of any term of office in the supreme court , the

4-44  court of appeals, if established by the legislature, or among

4-45  the district judges, the governor shall appoint a justice or

5-1  judge from among three nominees selected for such

5-2  individual vacancy by the commission on judicial selection.

5-3  2.  The term of office of any justice or judge so appointed

5-4  expires on the first Monday of January following the next

5-5  general election.

5-6  3.  Each nomination for the supreme court [shall] or the

5-7  court of appeals must be made by the permanent

5-8  commission, composed of:

5-9  (a) The chief justice or an associate justice designated by

5-10  him;

5-11      (b) Three members of the State Bar of Nevada, a public

5-12  corporation created by statute, appointed by its board of

5-13  governors; and

5-14      (c) Three persons, not members of the legal profession,

5-15  appointed by the governor.

5-16      4.  Each nomination for the district court [shall] must be

5-17  made by a temporary commission composed of:

5-18      (a) The permanent commission;

5-19      (b) A member of the State Bar of Nevada resident in the

5-20  judicial district in which the vacancy occurs, appointed by the

5-21  board of governors of the State Bar of Nevada; and

5-22      (c) A resident of such judicial district, not a member of

5-23  the legal profession, appointed by the governor.

5-24      5.  If at any time the State Bar of Nevada ceases to exist

5-25  as a public corporation or ceases to include all attorneys

5-26  admitted to practice before the courts of this state, the

5-27  legislature shall provide by law, or if it fails to do so the

5-28  supreme court shall provide by rule, for the appointment of

5-29  attorneys at law to the positions designated in this section to

5-30  be occupied by members of the State Bar of Nevada.

5-31      6.  The term of office of each appointive member of the

5-32  permanent commission, except the first members, is 4 years.

5-33  Each appointing authority shall appoint one of the members

5-34  first appointed for a term of 2 years. If a vacancy occurs, the

5-35  appointing authority shall fill the vacancy for the unexpired

5-36  term. The additional members of a temporary commission

5-37  [shall] must be appointed when a vacancy occurs, and their

5-38  terms [shall] expire when the nominations for such vacancy

5-39  have been transmitted to the governor.

5-40      7.  An appointing authority shall not appoint to the

5-41  permanent commission more than:

5-42      (a) One resident of any county.

5-43      (b) Two members of the same political party.

5-44  No member of the permanent commission may be a member

5-45  of a commission on judicial discipline.

6-1  8.  After the expiration of 30 days from the date on which

6-2  the commission on judicial selection has delivered to him its

6-3  list of nominees for any vacancy, if the governor has not

6-4  made the appointment required by this section, he shall make

6-5  no other appointment to any public office until he has

6-6  appointed a justice or judge from the list submitted.

6-7  [If a commission on judicial selection is established by

6-8  another section of this constitution to nominate persons to fill

6-9  vacancies on the supreme court, such commission shall serve

6-10  as the permanent commission established by subsection 3 of

6-11  this section.]

6-12  And be it further

6-13      Resolved, That Section 21 of Article 6 of the Nevada

6-14  Constitution be amended to read as follows:

6-15      Sec. 21.  1.  A justice of the supreme court, a judge of

6-16  the court of appeals, if established by the legislature, a

6-17  district judge, a justice of the peace or a municipal judge may,

6-18  in addition to the provision of article 7 for impeachment, be

6-19  censured, retired, removed or otherwise disciplined by the

6-20  commission on judicial discipline. Pursuant to rules

6-21  governing appeals adopted by the supreme court, a justice or

6-22  judge may appeal from the action of the commission to the

6-23  supreme court, which may reverse such action or take any

6-24  alternative action provided in this subsection.

6-25      2.  The commission is composed of:

6-26      (a) Two justices or judges appointed by the supreme

6-27  court;

6-28      (b) Two members of the State Bar of Nevada, a public

6-29  corporation created by statute, appointed by its board of

6-30  governors; and

6-31      (c) Three persons, not members of the legal profession,

6-32  appointed by the governor.

6-33  The commission shall elect a chairman from among its three

6-34  lay members.

6-35      3.  If at any time the State Bar of Nevada ceases to exist

6-36  as a public corporation or ceases to include all attorneys

6-37  admitted to practice before the courts of this state, the

6-38  legislature shall provide by law, or if it fails to do so the

6-39  supreme court shall provide by rule, for the appointment of

6-40  attorneys at law to the positions designated in this section to

6-41  be occupied by members of the State Bar of Nevada.

6-42      4.  The term of office of each appointive member of the

6-43  commission, except the first members, is 4 years. Each

6-44  appointing authority shall appoint one of the members first

6-45  appointed for a term of 2 years. If a vacancy occurs, the

7-1  appointing authority shall fill the vacancy for the unexpired

7-2  term. An appointing authority shall not appoint more than one

7-3  resident of any county. The governor shall not appoint more

7-4  than two members of the same political party. No member

7-5  may be a member of a commission on judicial selection.

7-6  5.  The legislature shall establish:

7-7  (a) In addition to censure, retirement and removal, the

7-8  other forms of disciplinary action that the commission may

7-9  impose;

7-10      (b) The grounds for censure and other disciplinary action

7-11  that the commission may impose, including, but not limited

7-12  to, violations of the provisions of the code of judicial

7-13  conduct;

7-14      (c) The standards for the investigation of matters relating

7-15  to the fitness of a justice or judge; and

7-16      (d) The confidentiality or nonconfidentiality, as

7-17  appropriate, of proceedings before the commission, except

7-18  that, in any event, a decision to censure, retire or remove a

7-19  justice or judge must be made public.

7-20      6.  The supreme court shall adopt a code of judicial

7-21  conduct.

7-22      7.  The commission shall adopt rules of procedure for the

7-23  conduct of its hearings and any other procedural rules it

7-24  deems necessary to carry out its duties.

7-25      8.  No justice or judge may by virtue of this section be:

7-26      (a) Removed except for willful misconduct, willful or

7-27  persistent failure to perform the duties of his office or

7-28  habitual intemperance; or

7-29      (b) Retired except for advanced age which interferes with

7-30  the proper performance of his judicial duties, or for mental or

7-31  physical disability which prevents the proper performance of

7-32  his judicial duties and which is likely to be permanent in

7-33  nature.

7-34      9.  Any matter relating to the fitness of a justice or judge

7-35  may be brought to the attention of the commission by any

7-36  person or on the motion of the commission. The commission

7-37  shall, after preliminary investigation, dismiss the matter or

7-38  order a hearing to be held before it. If a hearing is ordered, a

7-39  statement of the matter [shall] must be served upon the justice

7-40  or judge against whom the proceeding is brought. The

7-41  commission in its discretion may suspend a justice or judge

7-42  from the exercise of his office pending the determination of

7-43  the proceedings before the commission. Any justice or judge

7-44  whose removal is sought is liable to indictment and

7-45  punishment according to law. A justice or judge retired for

8-1  disability in accordance with this section is entitled thereafter

8-2  to receive such compensation as the legislature may provide.

8-3  10.  If a proceeding is brought against a justice of the

8-4  supreme court, no justice of the supreme court may sit on the

8-5  commission for that proceeding. If a proceeding is brought

8-6  against a judge of the court of appeals, no judge of the court

8-7  of appeals may sit on the commission for that proceeding. If

8-8  a proceeding is brought against a district judge, no district

8-9  judge from the same judicial district may sit on the

8-10  commission for that proceeding. If a proceeding is brought

8-11  against a justice of the peace, no justice of the peace from the

8-12  same township may sit on the commission for that

8-13  proceeding. If a proceeding is brought against a municipal

8-14  judge, no municipal judge from the same city may sit on the

8-15  commission for that proceeding. If an appeal is taken from an

8-16  action of the commission to the supreme court, any justice

8-17  who sat on the commission for that proceeding is disqualified

8-18  from participating in the consideration or decision of the

8-19  appeal. When any member of the commission is disqualified

8-20  by this subsection, the supreme court shall appoint a

8-21  substitute from among the eligible judges.

8-22      11.  The commission may:

8-23      (a) Designate for each hearing an attorney or attorneys at

8-24  law to act as counsel to conduct the proceeding;

8-25      (b) Summon witnesses to appear and testify under oath

8-26  and compel the production of books, papers, documents and

8-27  records;

8-28      (c) Grant immunity from prosecution or punishment when

8-29  the commission deems it necessary and proper in order to

8-30  compel the giving of testimony under oath and the production

8-31  of books, papers, documents and records; and

8-32      (d) Exercise such further powers as the legislature may

8-33  from time to time confer upon it.

8-34  And be it further

8-35      Resolved, That Section 3 of Article 7 of the Nevada

8-36  Constitution be amended to read as follows:

8-37      [Sec:] Sec. 3. For any reasonable cause to be entered on

8-38  the journals of each House[,] which may[,] or may not be

8-39  sufficient grounds for impeachment, the [Chief Justice and

8-40  Associate] Justices of the Supreme Court , the Judges of the

8-41  Court of Appeals, if established by the Legislature, and the

8-42  Judges of the District Courts [shall] must be removed from

8-43  Office on the vote of two thirds of the Members elected to

8-44  each branch of the Legislature . [, and the] The Justice or

8-45  Judge complained of[, shall] must be served with a copy of

9-1  the complaint against him[, and shall] and have an

9-2  opportunity of being heard in person or by counsel in his

9-3  defense . [, Provided, that no member] No Member of either

9-4  branch of the Legislature [shall be] is eligible to fill the

9-5  vacancy occasioned by such removal.

9-6  And be it further

9-7  Resolved, That Section 8 of Article 15 of the Nevada

9-8  Constitution be amended to read as follows:

9-9  [Sec:] Sec. 8. The Legislature shall provide for the

9-10  speedy publication of all Statute laws of a general nature [,]

9-11  and such decisions of the Supreme Court[,] and the Court of

9-12  Appeals, if established by the Legislature, as it may deem

9-13  expedient . [; and all] All laws and judicial decisions [shall]

9-14  must be free for publication by any person . [; Provided, that

9-15  no] No judgment of the Supreme Court or the Court of

9-16  Appeals shall take effect and be operative until the Opinion of

9-17  the Court in such case [shall be] is filed with the Clerk of said

9-18  Court.

 

9-19  H