ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES Sixty-eighth Session April 25, 1995 The Committee on Elections and Procedures was called to order at 3:30 p.m., on Tuesday, April 25, 1995, Chairman Close presiding in Room 331 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Jack D. Close, Chairman Ms. Chris Giunchigliani, Chairman Mrs. Joan A. Lambert, Vice Chairman Mr. Dennis L. Allard Mr. Joseph E. Dini, Jr. Mrs. Jan Evans Mr. Thomas A. Fettic Mr. David E. Humke Mrs. Jan Monaghan Mr. Bob Price COMMITTEE MEMBERS EXCUSED: Mrs. Vivian L. Freeman Mr. Richard Perkins, Vice Chairman GUEST LEGISLATORS PRESENT: Senator Bob Coffin, District No. 3 Chief Justice Tom Steffen, Nevada Supreme Court Justice Bob Rose, Nevada Supreme Court STAFF MEMBERS PRESENT: Mr. Robert Erickson, Research Director OTHERS PRESENT: Ms. Leola Armstrong/Executive Director, Common Cause Nevada Ms. Ande Engleman/Society of Professional Journalists Ms. Brooke Nielson/Assistant Attorney General, State of Nevada Ms. Stephanie Licht/Lobbyist, Elko County Mr. Jim Hulse/Chairman, Common Cause Nevada Ms. Lucille Lusk/Nevada Concerned Citizens Chairman Close asked for a motion to adopt minutes of March 14, 16, 23 and 28, 1995 Elections and Procedures Meetings. ASSEMBLYWOMAN LAMBERT MOVED COMMITTEE ADOPT ELECTIONS AND PROCEDURES COMMITTEE MEETING MINUTES FOR MARCH 14, 16, 23 AND 28, 1995. ASSEMBLYWOMAN GIUNCHIGLIANI SECONDED THE MOTION. Chairman Close asked for discussion. There was none. THE MOTION WAS APPROVED. SENATE BILL 169 - Makes various changes to provisions governing governmental contracts with legislators and contributions made to certain public officers. Senator Bob Coffin, District No. 3, prime sponsor of S.B. 169, testified the purpose of S.B. 169 was to eliminate loopholes in three parts of the statutes: the Campaign Practices Act, the Lobbying Statute and the Crimes against the Legislative Powers Statute. The Legislative Powers statute covered those areas where legislators were forbidden to misuse their power. The bill, he explained, would add the Governor elect and Lieutenant Governor elect to those officers who may not solicit or accept monetary contributions for any political purpose over a period preceding, during and following a regular legislative session and was the same period of time legislators conformed to in rules. Existing law included everyone except the Governor elect and Lieutenant Governor elect just for those days or months before they took office. S.B. 169 also changed the start of the period during which the officers, including the legislators, may not accept contributions from 30 days before regular session to 40 days after a general election. In accordance with existing law, the period ends 30 days after the final adjournment of a regular legislative session, he said. S.B. 169 prohibited a lobbyist from making or offering to make monetary contributions to any elected official in this process. S.B. 169 expanded existing law concerning prohibition of certain governmental contracts with legislators to include those members who are either named contractors or named subcontractors. The four changes were created from real-life experiences and were not created to fill a perceived need, Senator Coffin pronounced. Senator Coffin considered S.B. 169 as legislation which fine-tuned good legislation in existence. Assemblywoman Giunchigliani referenced page 3, line 9 and asked for a more detailed explanation. Responding to Assemblywoman Giunchigliani's request, Senator Coffin said S.B. 169 would eliminate non-reporting of contributions or expenditures. In explaining, he used as an example the election held on November 8. Legislators would continue to gather their expenses and contributions, listing them on a report through 30 days which would be December 8. However, he continued, contributions to legislators and the solicitation of contributions were not prohibited until December 16 or 17, or 30 days prior to the next election, leaving a one week period of time in which the money was not being followed. The Secretary of State had requested this part of the legislation be included in S.B. 169, Senator Coffin informed, and would have the polling period based on "election" and not "before the session" which would eliminate a black hole. Assemblywoman Giunchigliani noted another bill by Mrs. Segerblom which added a change could be made on the campaign forms but allowance for a carryover section must be made because it would appear as a huge lump sum or nothing, and one could not differentiate where the dollar amount came from because no carryover portion existed if a legislator had leftover campaign contributions. Senator Coffin welcomed whatever could be done on the campaign election forms. Assemblyman Dini asked if it was defined what a lobbyist was from the time of an election until the session if they had not registered for the next session. Would the lobbyist be a registered lobbyist, he questioned. Responding for Senator Coffin who stated he did not have the entire lobbyist section, Mr. Bob Erickson, Research Director, said it would be somebody who was registered. It was an omission in the statute, Mr. Erickson related, and only the legislator who would accept that contribution would be in trouble. Assemblywoman Giunchigliani assumed the bill was for paid or unpaid lobbyists. Assemblyman Price asked for a definition of "named contractor". Senator Coffin answered the question by explaining prior to 1987 when the Crimes Against Legislative Power Act was revised to make certain public employees could continue to serve in the legislature, a prohibition existed that no matter how one was involved in a state contract, one could not be involved in a state contract. The loophole discovered indicated one could still serve and be involved and the person's name could be there. "We just thought that was unfair to the citizens who were not elected officials," he announced. Ms. Leola Armstrong, Executive Director of Common Cause Nevada, a proponent of S.B. 169, provided the committee with prepared testimony (Exhibit C). Responding to her testimony, Assemblyman Price asked Ms. Armstrong if she anticipated objection by the Sponsor, Senator Coffin, to put the amendment to extend the provisions of S.B. 169 to all elected officials, particularly county commissioners and city council members, into S.B. 169. Responding, Ms. Armstrong said her suggestion was to put her suggestions into another bill due to the lateness of the session. Ms. Ande Engleman, representing Society of Professional Journalists, testified in favor of S.B. 169. When she supported S.B. 169 in the Senate, she conveyed she was representing the Nevada Press Association. As the former Executive Director of the Nevada Press Association, Ms. Engleman told committee she received an anonymous fax in December which was a copy of a letter from a recently elected state official which was a request for funds. It described in detail the influence which could be brought to bear on various bills. That same night she faxed a copy of the letter to the Associated Press, sent a copy of the letter to the Secretary of State's office along with a complaint only to learn that the law passed a few years ago did not cover this person because this person was an official that had been newly elected to office. S.B. 169 corrects that, she said, so that they, like legislators, who essentially take office the day after they are elected, would be covered by ethics problems. Society of Professional Journalists supported the entire legislation, she declared. She also announced support of ethics pertaining to local government. She did not wish to delay Senator Coffin's bill by amendment, but she asked legislators to keep in mind for the next session. Ms. Brooke Nielson, Assistant Attorney General, State of Nevada, a proponent of S.B. 169, also testified before the Senate committee in support of the legislation, and responding to Section 1, she expressed support of the amendment which was intended to also prohibit named subcontractors from benefitting from monies appropriated by the legislature just as a general contractor was currently prohibited. However, she said their main interest came from something which occurred in the 1993 legislative session. During that session, the Attorney General's office was asked to investigate an incident in which it was alleged that a lobbyist had offered a campaign contribution to a legislator in exchange for support on a bill. Although the Attorney General did not prosecute the lobbyist criminally, the lobbyist agreed after investigation to resign and also agreed not to register as a lobbyist in the future. In the course of the investigation, it was found there was a lack in the law whereas a legislator could not accept or seek an offer during the legislative session, there was no prohibition against a lobbyist making that offer during the session. The proposed amendment to N.R.S. 218.942 was needed to address the situation. Similarly under NRS 294.300, the provision prevented legislators from seeking or accepting political contributions, but again nothing existed to prevent the lobbyist accused of committing that act during the 1993 session. She announced support of the amendment and the amendments to the bill that occurred in the First Reprint on the Senate side which changed the time period. Assemblywoman Giunchigliani referenced page 2, line 45, and asked if it would be proper to say, "A legislator shall not instigate the introduction of any legislation for the purpose of obtaining employment to lobby in opposition thereto" especially if the legislator would be coming back the next session as a lobbyist rather than as a legislator. Ms. Nielson said it was her understanding the law did not address that situation, and she had heard the issue was being proposed although not in the context of S.B. 169. Assemblywoman Giunchigliani said the section only referenced lobbyists, and suggested Senator Coffin might be open to adding a section which stipulated the same language just for the legislator. Ms. Nielson agreed with the reasoning which seemed to be appropriate for legislation. It was a slightly different situation which was not the situation encountered in 1993, nor what the section in the bill was designed to address, she informed. Assemblyman Price said it only speaks for the purpose of employment to lobby in opposition thereto which in the reverse would mean that it would not be illegal for a lobbyist to suggest having legislation whereby he might be able to obtain employment to lobby on behalf of. He suggested adding the words, "in opposition" or "on behalf of". Since there was no other testimony, Chairman Close closed the hearing on S.B. 169. Chairman Close asked for introduction of the following Bill Draft Requests: BDR R-2009: Expresses concern and extends condolences to residents of Oklahoma City. ASSEMBLYMAN HUMKE MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST. ASSEMBLYMAN ALLARD SECONDED THE MOTION. THE MOTION CARRIED. * * * * * * * * * BDR R-1944: Commends Rabbi Schachet for his public service. ASSEMBLYMAN ALLARD MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST. ASSEMBLYMAN DINI SECONDED THE MOTION. THE MOTION CARRIED. * * * * * * * * * BDR 23-1048: Makes various changes relating to Commission on Ethics. ASSEMBLYWOMAN GIUNCHIGLIANI MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST. ASSEMBLYWOMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. * * * * * * * * * BDR 24-703: Requires transmittal of additional information on convicted felons to county clerks and registrars of voters. ASSEMBLYWOMAN GIUNCHIGLIANI MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUEST. ASSEMBLYWOMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. * * * * * * * * * Chairman Close opened the hearing on A.J.R. 14. ASSEMBLY JOINT RESOLUTION 14 - Proposes to amend Nevada constitution to require Governor and Lieutenant Governor to be of same political party, to require that they be elected on same ballot, to remove Lieutenant Governor from position of President of Senate, and to abolish additional expense allowance paid to Speaker of Assembly and President of Senate. Chairman Close reminded committee A.J.R. 14 public hearing was held on February 23rd. No action was taken and the bill was brought forth in a work session on April 2nd. A motion carried to Do Pass and Rerefer. Chairman Close asked if anyone present wished to testify further in regard to A.J.R. 14. There were none. Chairman Close closed the hearing on A.J.R. 14. Chairman Close then called for discussion by members of the committee. Assemblyman Dini, prime sponsor of A.J.R. 14, declared he did not see any great appetite for the resolution although it had passed both houses once and was stopped the second time through. A.J.R. 14 was changed back to the original intent and the Lieutenant Governor was taken from the position of President of the Senate which was very popular in the Senate four years ago. The allowance for Speaker and President of the Senate was also removed, he said. Ms. Stephanie Licht, representing Elko County, stated Elko County unanimously opposed A.J.R. 14. See (Exhibit D). Assemblyman Dini questioned the interest of Elko County in A.J.R. 14, asking why the Board of County Commissioners as a Commission would be involved. Individually the Commission could take a position but as a Commission why would they be involved, he asked. Ms. Licht, referencing the position letter from the Elko County Board of commissioners, (Exhibit D), said the Commission felt a two party system was good. Assemblywoman Giunchigliani asked Mr. Dini to confirm that A.J.R. 14 had been submitted previously and passed both houses. The only issue occurred with former Lieutenant Governor Wagner when Assemblyman Dini made the decision not to introduce the legislation at that time. Assemblyman Dini explained it was decided not to process the legislation at that time because Lieutenant Governor Wagner had been injured and was in the job, and, "We did not want to limit her from being able to run again," he said. Chairman Close announced the chair would entertain a motion. ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO DO PASS ON A.J.R. 14. ASSEMBLYMAN DINI SECONDED THE MOTION. Chairman Close asked for discussion. Assemblyman Price asked committee the argument for abolishing the expense allowance for the Speaker and the President of the Senate. Assemblyman Dini, responding to Mr. Price's query, said $2.00 would exceed the limit and further one did not have to account to the I.R.S. for $66, but, if $68 was received, a record of all expenses was mandatory. Assemblyman Fettic asked Assemblyman Dini what he saw as the advantage to A.J.R. 14. Assemblyman Dini did not know whether it had happened in Nevada, but stated the Governor and Lieutenant Governor relationship had not been a friendly relationship at times, and A.J.R. 14 should build a better team of working together. Under Nevada law, where the Lieutenant Governor is the head of Economic Development and Tourism, a closer connection existed between the two offices since they would be working together more as a team, which Assemblyman Dini believed was an advantage in Nevada. Assemblywoman Lambert spoke in opposition to the motion. She liked all parts of the resolution except the part of having the Governor and Lieutenant Governor run as a team. People like the right of choices which they would not have, she declared, and she did not feel comfortable taking the choice away from them. Assemblyman Humke spoke in opposition to A.J.R. 14 on the same grounds as Assemblywoman Lambert. He liked the aspect of allowing the Senate to control their own destiny with the Floor Leadership positions. For the Senate to have lesser rights in that regard than the House was not appropriate, Assemblyman Humke said. If from two separate parties, whoever is Governor is reminded to stay in his/her office and do the job. If the Governor had someone from the same party to leave the Governorship to, then the Governor might be more likely to take a Federal appointment or run for another office, he emphasized. The present system is insurance for a Governor to serve out his term of office, he added. Assemblyman Allard stated he opposed A.J.R. 14 on the grounds it would limit voter choice. Potential conflicts between a Governor and Lieutenant Governor were viewed in the checks and balances arena, he felt. Assemblywoman Lambert clarified she did not see anything in A.J.R. 14 which mentioned just a general election. It says "appear on the same ballot as the Governor," so it could be read at the primary as well as at the general election, she pointed out. Seeing no more questions, Chairman Close asked for the vote on A.J.R. 14. THE MOTION FAILED. ASSEMBLYMEN HUMKE, ALLARD, FETTIC, CLOSE, ASSEMBLYWOMEN LAMBERT AND MONAGHAN VOTED NO. ASSEMBLYWOMAN EVANS WAS NOT PRESENT FOR THE VOTE. Assemblywoman Giunchigliani, after failure of the motion, announced some people indicated they liked portions of A.J.R. 14. She suggested an amendment regarding the pay and removing the Lieutenant Governor as the President of the Senate. Her motion would be for the two sections. Chairman Close asked Assemblywoman Giunchigliani to clarify the motion. ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.J.R. 14 WITH THE AMENDMENT TO STRIKE ON PAGE 2, LINES 4 AND 5, AND LINES 6 THROUGH 16. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Chairman Close asked for discussion. Assemblywoman Giunchigliani explained the amendment removed the Lieutenant Governor as President of the Senate, it dealt with the per diem issue, and the Section 22 left in deals with "if a vacancy occurs for the Lieutenant Governor, what would occur at that point in time." Chairman Close asked for further comment on the motion. There was none. Assemblywoman Giunchigliani added if committee were to pass the motion, the summary should also be modified to reflect the changes. Chairman Close asked Mr. Humke, who seconded the motion, if he agreed to the summary change to the motion. Assemblyman Humke agreed. Chairman Close then asked for the vote. THE MOTION CARRIED. ASSEMBLYMAN ALLARD VOTED NO. ASSEMBLYWOMAN EVANS WAS NOT PRESENT FOR THE VOTE. ASSEMBLY RESOLUTION 5 - Amends Standing Rules of Assembly to allow consideration of resolutions to memorialize, congratulate or commend only at certain time. Chairman Close reminded committee A.R. 5 previously passed the committee. ASSEMBLYWOMAN GIUNCHIGLIANI MOVED FOR RECONSIDERATION OF COMMITTEE'S DO PASS MOTION ON A.R. 5. ASSEMBLYMAN DINI SECONDED THE MOTION. Assemblywoman Giunchigliani stated she planned to make a subsequent motion. After seeing how the sessions work, she did not believe A.R. 5 was workable, but at a later date A.R. 5 could be revisited. Chairman Close asked for further discussion. There was none. He then asked for a vote. THE MOTION CARRIED. ASSEMBLYWOMAN EVANS WAS NOT PRESENT FOR THE VOTE. * * * * * * * * * ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO INDEFINITELY POSTPONE A.R. 5. ASSEMBLYMAN ALLARD SECONDED THE MOTION. Chairman Close asked for further discussion. There was none. THE MOTION CARRIED. ASSEMBLYWOMAN EVANS WAS NOT PRESENT FOR THE VOTE. * * * * * * * * * At this time, Vice Chairman Lambert assumed duties of Chairman and opened the hearing on Assembly Joint Resolution 27. ASSEMBLY JOINT RESOLUTION 27 - Proposes to amend Nevada constitution to provide for initial selection of judges by appointment with annual reviews of performance and subsequent retention by election. Assemblyman Close, District 15, primary sponsor of A.J.R. 27, provided the committee with prepared testimony. See (Exhibit E). Assemblywoman Giunchigliani referred to page 2, Section 3 and pointed out committee had heard a bill recently which concerned a different way to select the Justice. If committee processed A.J.R. 27, Section 3 would need to be modified, and she asked if Assemblyman Close had an objection. Assemblyman Close stated he had no objection to the modification. Assemblyman Dini conveyed the Missouri Plan had been sent to the voters several times and was overwhelmingly rejected. He asked Assemblyman Close if A.J.R. 27 could be approved differently. Assemblyman Close emphasized he had reviewed and researched the Missouri Plan, and when it went to voters in the past, it was confusing. Assemblyman Close did not believe the voters understood the legislation. With simplicity in mind, Assemblyman Close omitted how the Commission, which would appoint the judges, would be constructed. The construction of the Commission would be left up to the legislature, he added. It could be summarized by saying "if you vote for this, the judges will be appointed and the electorate will have to depend upon the legislature to make the decision as to how the commission would be created. If you vote against it, they will continue to be elected as in the past." The Commission would be the most critical aspect of the process. The Governor would have to make the final decision, but the Commission, which would have to be made up of lawyers and non-lawyers, would be the ones to make the tough decision to provide the nomination. By keeping it simple, the voters will make that decision and should find the process easier to understand, Assemblyman Close said. Assemblyman Humke referred to Assemblyman Close's testimony regarding two recent Supreme Court campaigns which, as measured by a high "none-of-the- above" vote, Mr. Close saw as a rationale for A.J.R. 27. Assemblyman Humke asked why a high "none-of-the-above" vote meant A.J.R. 27 was a good measure. Responding to Assemblyman Humke's inquiry, Assemblyman Close stated the extrapolation made by himself was based upon his experience. As he walked door to door, most people were saying, "I am not going to vote for either of them" because of the campaign. Assemblywoman Giunchigliani asked Assemblyman Close to explain the differences between the report done by the judges in 1994 and in A.J.R. 27. Assemblyman Close said if you put in the Constitution how the Commission is going to be constructed, and, if it does not turn out that way, a five year turnaround would be required to make a change. Assemblyman Close concluded by stating the major subject was, "do you want them elected or do you want them appointed." Chief Justice Tom Steffen and Justice Bob Rose, Nevada Supreme Court, assumed the testimonial table. An excerpt was provided to the committee entitled "Merit Selection." See (Exhibit F). Chief Justice Steffen, a proponent of A.J.R. 27, stated it was his belief four of the five justices, at least, would endorse the legislation. Chief Justice Steffen stated the justices did not view merit selection as a vote of lack of confidence in voters. The electorate have very little information upon which to make an enlightened judgement when voting for judicial candidates. There were several reasons for this, he explained. In the elective process, the requirement is to be 25 years of age, a licensed attorney in the state of Nevada, a resident of two years and pay a filing fee. If one could raise adequate campaign funds and have a good campaign personality, the individual would have a very good chance of being elected, he continued. Chief Justice Steffen said the Selection Commission receives from applicants for judicial office, detailed applications concerning background, experience, education, legal experience, character, mental health, physical health, and all of the things that help the Commission to reasonably evaluate the credentials of a candidate for judicial office. None of these exist with respect to judicial campaigns, and, although a campaigner for judicial office may indicate his background and his experience, ordinarily their pitches are very brief because they are costly especially television time. Chief Justice Steffen said most judges realize the constraints placed on them by the code of judicial conduct mean judges cannot make pledges or promises to the electorate other than to faithfully and impartially perform the duties of their office, nor can they take positions on issues, controversies or cases of any kind that might come before them. It was not that voters could not be relied upon to make good decisions when they had information upon which to base decisions; it was the fact that in judicial campaigns, voters had little information upon which to make their decisions, he contended. There was an urgent need for merit selection in all of the states because the most qualified judicial candidates to be on the bench were needed. The judicial branch of government should not be involved in politics, and, he declared, judges had an absolute fidelity to the law. Judges could grant no favors to themselves, to the sovereign, to litigants or anyone else, and that would also apply to their campaigns, he said. Assemblyman Fettic questioned Chief Justice Steffen who said if incumbent judges elected not to run or did not receive the majority of the popular vote in their election for retention, the commission would screen and select three nominees to go to the Governor. Assemblyman Fettic asked if there was a need for an annual review and the logic behind the review. Chief Justice Steffen believed if the evaluation was objective and fairly conducted, it would be a good thing. Assemblyman Close thought the judges as employees of the state needed to be informed on an annual basis how they were doing as opposed to right before they would go up for election again. Assemblyman Allard questioned if Justice Steffen envisioned the justices campaigning to retain their jobs. Chief Justice Steffen believed most good, hard working, honest judges would not be faced with a negative ground swell and hopefully would not be faced with the need to campaign. Assemblyman Allard addressed Chief Justice Steffen regarding the public making an informed decision about retaining a judge. Chief Justice Steffen responded when a judge was running for retention, the focus was on the job the judge had done during his period of office. If a judge was not doing the job, groups, including members of the bar, would have an incentive to bring information forward to the public. Assemblywoman Giunchigliani referenced page 4, line 26 language, "After the expiration of 30 days from the date on which the commission has delivered to him its list of nominees..." and pointed out the language indicated a Commission was presently in place for current vacancies, and she asked Chief Justice Steffen if that was true. Chief Justice Steffen responded a Commission was in place. Assemblywoman Giunchigliani continued her quote from page 4, on line 28, "...if the Governor had not made the appointment required by this section, he shall make no other appointment to any public office until he has appointed a justice..." and she asked if that was the enforcer section or "teeth" saying no one else could be appointed if a vacancy occurred until the situation was resolved. She asked if a situation had ever occurred. Chief Justice Steffen responded it was, and he was not aware of it having occurred. Assemblywoman Giunchigliani responded the Commission would not care if they let it sit open for a period of time, and there was no provision for a Governor to reject the list of the three individuals. Chief Justice Steffen said the Governor must select from among the three. Assemblyman Price expressed the opinion that politics could not be taken from the relationship between judges, the judicial branch, the Supreme Court or anything. He referred to the Justice Rose Bird case and the two judges in California who lost races. Chief Justice Steffen reminded Assemblyman Price the other two justices were aligned with Chief Justice Bird in refusing to affirm death penalties, and the judges probably should have suspected the outcome. Justice Bob Rose testified he did not think the Missouri Plan or modified Missouri Plan and an appointment and retention system or the open election process were perfect, and both do involve politics, but he noted there was a lot less politics in the appointment process than running for election. Justice Rose favored the Missouri or a Close Plan because the plans would take the money out of the process and encourage more people to come forward to try to be judges. The Nevada Plan is a hybrid between the open election process which Nevada now has and the Missouri system, he said. A clear division was in the commission as to which plan should be adopted. The majority favored the Missouri Plan, but it was a close majority, he said. Compromising, the Commission came up with what they call "The Nevada Plan," which provided for one no-holds-barred, non-partisan election as Nevada now has, and thereafter the Justice would go onto the retention process where every judge would be subject to an open election process. It also provided if appointed, the judge would run in the next general election after two years had expired to give the judge time to settle into the job before he or she had to go out and run in the general election. The Senate stripped that provision from the Nevada Plan which they have requested a bill draft on, but otherwise the Senate left the Nevada Plan intact, he said. The Senate also feels this would appeal more to the voters and have a better chance of passing than a straight Missouri Plan. The Assessment Commission also placed the Nevada Plan of appointment and retention of judges with a Judicial Evaluation Commission. The Judicial Selection Commission was expanded to 10 members under the Nevada Plan (four appointments would be made by the legislature, two by the Assembly and two by the Senate). Basically, that is the Nevada Plan by the Workload Assessment Commission, he said. Assemblyman Humke referred to page 4, line 21 of A.J.R. 27 citing the Commission was permitted to adopt regulations and a provision existed for confidentiality of the proceedings and records. Assemblyman Humke noted it was a clear statement they were not subject to the open meeting law. He asked Justice Rose if he would care to expound on the provision. Justice Rose affirmed the process presently was conducted in this manner, and it worked well. There is much more access to information than voters would have such as medical records, tax records, and business information if that was in question. Some of the questions were personal in nature and could delve into health and financial matters. He stated it was appropriate to keep the interviews closed for that purpose. Assemblyman Humke asked if there was any prohibition on the legislature naming some of its own members to the Commission. Justice Rose replied no, and the only prohibition the Assessment Commission put in was that they not be lawyers. The court did not think that was an appropriate limitation because you should be able to appoint anyone you want, lawyer or non lawyer. He clarified that was the only objection. Assemblyman Price pointed out people were in all branches of government in very high positions, and he specifically pointed out Chancellor of the University System. Assemblyman Price continued his dialogue and stated he was co-sponsor of a version of the present open meeting law. In the discussions at that time, it was brought out if people were going to come into public life as a judge, teacher, legislator or anything else and be paid by taxpayer dollars, they should then be accountable and be expected to have their medical and health records and anything else as subject of discussion or consideration. Assemblyman Price stated he had been persuaded for the first time to give consideration in the affirmative to a type of modified Missouri Plan which he had generally not been in favor of. He stated he would have an amendment to take the provision out because even in the courts, when you are doing the people's business, the people are entitled to know. He called attention to the swing across the United States for more accountability and openness in the public areas. Assemblywoman Giunchigliani proclaimed agreement with Assemblyman Price. Assemblywoman Giunchigliani did not agree to having legislators on the Commission. Chief Justice Steffen had suggested the Commission might be the one to select, she said, and she asked for considerations which should be reviewed. Assemblywoman Giunchigliani stated if the Governor did not appoint from that selection, allowing the Commission to make the selection could be better than leaving it to not letting them appoint anybody. Assemblywoman Giunchigliani asked Assemblyman Close in relation to page 4, the constituency of the Commission, if it was his intent that this would be included in A.J.R. 27 this session. Assemblyman Close replied it was not because he believed this would create confusion in the mind of the voters who had to vote on the Plan. Rather this legislation would have to go through two sessions of the legislature and a vote of the people without having the constituency of the Commission identified. If successful, the legislature would then have the responsibility to identify the constituency of the Commission. Assemblywoman Giunchigliani said recently a bill to combine the Controller and Treasurer was killed for the same reason as the duties were not specified either in the law or in accompanying legislation. She did not think this should be part of the bill, but agreed this should go on the ballot and believed they should move forward on what the law should be. They should not be in the Constitutional Amendment. However, there should be something drafted so the public would know what would or could be coming. She would not want it in the bill but did think there was a responsibility to move forward. Vice Chairman Lambert asked for testimony on A.J.R. 27. Ms. Leola Armstrong, Executive Director, and Mr. Jim Hulse, Chairman, representing Common Cause Nevada assumed the testimonial table to speak in support of A.J.R. 27. Ms. Armstrong addressed the Committee from prepared text (Exhibit G). She agreed the voting public should be apprised. If the voters trusted it, they would vote for it. Assemblyman Humke stated a number of women were members of the judiciary in Nevada, both at the Supreme Court and at the District Court, and he asked if Common Cause had done an analysis to determine how many of those women took the bench through election versus appointment. Ms. Armstrong replied she did not know and she had not researched it, but stated she heard this from women lawyers, particularly in Reno, who had talked to Ms. Armstrong about the problem. They did not feel they would stand a chance at one of those jobs simply because it was not in balance, but, she admitted, she did not have statistics. Assemblyman Humke commented it would seem looking at district court races, that women had won election to those races and there had been few where a woman had taken the bench through appointment. Assemblyman Humke conveyed he was not defending the existing system of appointment, but believed it was rife with difficulty. He asked Ms. Armstrong how she felt about the legislature passing some of the legislation before the measure would go on the ballot implementing legislation that would create the Commission so that the voters could see what the rules were going to be. Ms. Armstrong said before A.J.R. 27 would become a part of the Constitution, after two sessions and going to the voters, there was no reason why the legislative bodies could not readjust the Commission on Judicial Discipline and Review. By the time A.J.R. 27 would get to the ballot, the people would say "they are providing equality," so the Judicial Commission could be constructed any time. Assemblyman Humke then asked how Common Cause felt about legislators appointing members of their own body to the Commission on Selection and Review. Ms. Armstrong, speaking for herself and some members of the Board, thought legislature in the last few years had spent too much time trying to micro manage government at many levels. He then asked how she felt about an amendment whereby the legislature appointed a committee of its own to serve as the Selection Commission. Ms. Armstrong thought legislators should consider separation of powers and repeated she did not think the legislature could spend its time micro managing government. Legislators make the laws, the Governor has to see the laws are implemented, and the court system determines if they are legal, she explained. She did not see why the legislature should inject itself into this other than passing the legislation. Assemblyman Humke was not certain there would be a separation of powers problem especially if A.J.R. 27 passed by Constitutional Amendment. Ms. Armstrong reiterated the legislature had enough to do and should leave the Judiciary alone. Continuing, Assemblyman Humke again referenced page 4, line 21 whereby the Commission may establish regulations which provide for confidentiality. The Board of Regents in Nevada must select a highly qualified individual with a Ph.D. and other post doctoral education and vast levels of experience, yet that person was expected to go into an open meeting situation and lay everything bare. Why should this not be done with the Commission with judicial candidates, he asked. Ms. Armstrong thought it should be done because as a voter she had a right to know everything about somebody who was going to have to say something about the laws under which she lived, their business acumen and whatever else there was to know to allow her to make an intelligent choice. She believed she had to know those things as all the voters do. She had previously asked if there had been any provision for the Commission to make public its findings after the Commission evaluated the judges. Otherwise only seven people would know whether or not an incapable person was on the bench. Assemblyman Humke agreed it was better to have writing they had put out as opposed to a yes or no. At this time, Vice Chairman Lambert stated she must leave the meeting to testify on a bill in another committee. She, therefore, turned the chair of the meeting over to Assemblywoman Giunchigliani. Mr. Hulse, Common Cause Nevada, adding to Ms. Armstrong's testimony and the justices' testimony, thought the proposed Constitutional Amendment was a large step in the right direction. It would be better to spell out provisions concerning make-up of the Commission in the Constitution for the reason Ms. Armstrong mentioned, he said. There was apprehension by women attorneys and others who assumed the Commission would not necessarily be fair unless somehow the gender balance was put in the Constitution which was a conclusion different from the one Mr. Close reached. He reiterated it would strengthen the bill to have more assurances in the Constitution of a fairly constituted Commission. However, he thought A.J.R. 27 was an excellent proposal, and with the proper support, could be presented favorably to the people as it had not been presented previously. Chairman Giunchigliani thought committee would consider some of the issues which had been raised. In Clark County in one of the judges' races, evaluations had been done, she noted. Assemblyman Fettic pointed out the research which Mr. Close had done and that Mr. Close had said he would like to see the voters determine whether they wanted the plan. If the voters did want the plan, the legislature would be in a position to set up the Commission. There was credibility in Mr. Close's plan in trying to get the legislation to the voters in as pure a fashion as possible, Assemblyman Fettic proclaimed. Ms. Lucille Lusk, Nevada Concerned Citizens, stated she was testifying marginally in opposition to A.J.R. 27. Similar proposals had been voted down previously, she cited, because the voters had not been convinced the proposals were in their best interest. All the arguments made about why justices should not run for election apply to everybody who runs in any election, and the big money comes in from the people who appear before you, she told the committee. The reason they have an interest in giving that big money is because they have an interest in the proceedings of the particular body to which they are contributing. Campaigns are nasty and many times not true, but it is difficult for citizens to sort them out in any race. Ms. Lusk believed more good people would run for office if the dollars and campaigning were taken out. Most honest people who serve in local and state office would make less money by serving in office than they would if they stayed at their profession regardless of that profession. It is true the voter has very little information upon which to make a decision on a judicial candidate as it is extremely difficult to gather information on judicial candidates, she added. People have voted against these proposals in the past, she said, because they do not see an option for assuring themselves they will get somebody better when it is the same people making the appointment. Referencing page 4, line 5, "The legislature shall provide by law for:...", Ms. Lusk believed a greater problem would arise if people did not know what the Commission would be when the people are expected to vote on whether or not they want their justices appointed by the Commissions. In addition, A.J.R. 27 provided in lines 14 through 18 for an annual review of the performance and a report of the performance which she believed was good, but there is no criteria so that the people may know what the Commission would judge the performance of a judge on. She believed people would want to know that. Finally, people are going to want the process to be open so they can know how the Commission determines who it will recommend for appointment. People want to know with some degree of certainty they will get a better product and not simply someone who has met the good old boy criteria of the Governor and a hand picked few by going to a system like this rather than elections. There being no further business to come before committee, the meeting was adjourned at 5:35 p.m. RESPECTFULLY SUBMITTED: Bobbie Mikesell, Committee Secretary APPROVED BY: Assemblyman Jack D. Close, Chairman Assemblywoman Chris Giunchigliani, Chairman Assembly Committee on Elections and Procedures April 25, 1995 Page