MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 3, 1995 The Committee on Judiciary was called to order at 9:35 a.m., on Monday, April 3, 1995, Chairman Humke presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Mr. Thomas Batten GUEST LEGISLATORS PRESENT: Assemblyman P.M. Roy Neighbors Assemblyman Jan Evans Assemblyman Bob Price STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: J. Charles Thompson, Clark County District Attorney's Office William R. Morse, Attorney at Law Justice Cliff Young, Nevada Supreme Court Justice Charles Springer, Nevada Supreme Court Chief Justice Tom Steffen, Nevada Supreme Court Frankie Sue Del Papa, Attorney General James J. Jackson, State Public Defender Justice Miriam Shearing, Nevada Supreme Court Justice Bob Rose, Nevada Supreme Court Michelle Gamble, Nevada Association of Counties Mr. Anderson requested committee introduction of BDR 15-1741. B.D.R. 15-1741 Prohibits harboring children who run away from home. ASSEMBLYMAN GOLDWATER MOVED FOR COMMITTEE INTRODUCTION OF B.D.R. 15-1741. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. THE MOTION CARRIED. * * * * * ASSEMBLY BILL 208 - Revises provisions governing amount of money to be paid to jurors for service. Chairman Humke announced he had been informed by Speaker Joe Dini that it is currently within the power of the counties to do what A.B. 208 has outlined and therefore it should be withdrawn. Chairman Humke confirmed the action of the committee to withdraw A.B. 208. ASSEMBLY JOINT RESOLUTION 17 - Proposes to amend Nevada constitution to allow legislature to designate places in county other than county seat for holding terms of district court. Assemblyman Roy Neighbors, District 36, explained A.J.R. 17 would amend the constitution to allow the Legislature to designate places within the county other than the county seat for holding district court. For example, district court hearings could be held at the prison facilities, Sparks Mental Health Institute, or in Pahrump. The ability to hold district court hearings in locations other than the county seat would assist witnesses required to travel long distances to appear and testify. Mr. Neighbors asserted A.J.R. 17 was not new as it was introduced but failed in the 67th session. He stated there is no fiscal impact involved in A.J.R. 17. Mr. Neighbors provided the committee with proposed amendments to the resolution. The amendments are attached hereto as (Exhibit C). The amendments will need to be reviewed by the Legislative Counsel Bureau as to what form is best. Although the resolution would greatly assist the rural counties, it is also designed to help urban counties as well. Ms. Steel asked if the resolution would allow for a Las Vegas judge to travel to Laughlin to hear a case. Mr. Neighbors stated yes. Upon Ms. Steel's further inquiry, Mr. Neighbors stated he did not know if the resolution would allow for teleconferencing hearings. Mr. Carpenter asked if there was a problem in changing the language in the resolution from "one" location to "two" stating for example in Elko it would be necessary for them to be able to go to both Wendover and Jackpot. Mr. Neighbors did not see a problem with changing the language to include more than one location. Mr. Anderson asked if the proposed amendments moves the responsibility for designating the additional locations to the county commission rather than the Legislature. Mr. Neighbors stated the amendment would delegate the authority to the county commission. Chairman Humke clarified with the amendments the county commissions would determine the alternate cites outside the county seat with the approval of the Legislature. Michelle Gamble, Nevada Association of Counties, stated they supported A.J.R. 17 in its present form and with the amendments proposed by Mr. Neighbors. SENATE JOINT RESOLUTION 25 - (OF THE 67TH SESSION) Proposes to amend Nevada constitution to create intermediate appellate court. Chief Justice, Tom Steffen, Nevada Supreme Court testified on both S.J.R. 25 and Assembly Bill 259. Justice Steffen stated all five members of the Supreme Court are in agreement that the most effective way to deal with the unmanageable case load at the Supreme Court is through the adoption of an intermediate appellate court. That would require a constitutional amendment and a vote of the people. Five times now the Legislature has recognized the need for the intermediate appellate court. However, there has been no major effort to advise the people of Nevada about the need for an appellate court so the vote has failed each time. Honorable Steffen stated the Supreme Court processes "reasonably effectively" 1,100 dispositions per year. The primary function of the Supreme Court, also known as the court of last resort, is for setting precedent. Justice Steffen stated a study prepared by the members of the court staff indicates an intermediate appellate court would probably reduce the caseload of the Supreme Court by 40% to 50%. ASSEMBLY BILL 259 - Increases number of justices of Nevada supreme court and authorizes use of panels. Justice Steffen stated the premise of A.B. 259 is the inclusion of two justices will fix the problem of case overload at the supreme court. However, he does not believe that would occur and in fact opposes A.B. 259. Justice Steffen stated the court is divided on this issue with Justices Young, Rose, and Shearing favoring the passage of A.B. 259 and Justices Steffen and Springer opposing the proposition. Honorable Steffen denied their reason for opposition was not because of any concern of attenuation of authority on the court. Chief Justice Steffen made reference on several occasions to a letter dated March 13, 1995, signed by Justices Young, Rose, and Shearing. That letter is attached hereto as (Exhibit D). The letter suggests the Supreme Court sit en banc in order to dispose of "precedent-setting" cases. The Supreme Court has two functions: 1) Error correction for precedent cases; and 2) disposing of cases where there is error but no precedent concerns. If A.B. 259 is adopted, sitting en banc would require all seven justices to sit on approximately 200 cases per year. He stated this would not be productive as trying to obtain a consensus of among five would now be required to have a consensus of seven. Chairman Humke confirmed the committee had received Chief Justice Steffen's position statement pertaining to the inclusion of two additional supreme court justices. Chief Justice Steffen explained A.B. 259 would add two supreme court justices but the chief justice would not be sitting on the established panels unless there was a conflict or cases held en banc. He sees this as diminishing the caseload of the chief justice. Chief Justice Steffen stated all studies show sitting on panels is not the way to increase productivity on a court of last resort. He spoke with the court administrator and a past chief justice for the Supreme Court in the state of Washington because Justice Rose informed him this court was sitting in panels. However, he was assured by the court administrator they will not be sitting in panels. This 9-judge court finally got an intermediate appellate court in 1967 and have not sat in panels since that time. Chief Justice Steffen expounded his study of sitting on panels and en banc hearings of other states, including Washington, Mississippi, Utah, and Texas. All his studies have concluded sitting in panels is highly unproductive. Further, the Washington court is going before the Legislature to reduce their justices from nine to seven. Chief Justice Steffen stated the Ninth Circuit Court is an intermediate court of appeals not a court of last resort and further explained the function of circuit courts in relation to a court of last resort or supreme courts. He feels if the Nevada Supreme Court is expanded you would have both an intermediate appellate court and a court of last resort within the same court. He informed the committee there are only two states who sit in panels successfully. One, the state of Delaware which has a 5-judge court and annual case filings of 500. The other is the District of Columbia which has a 9-judge court and annual case filings of 1,700. He believes the District of Columbia, by sitting panels of three sacrifices the orderly, clear, and unambiguous development of the law of the corpus juris of that jurisdiction. Basically, the panels just resolve disputes and do not advance the orderly development of the law. Chief Justice Steffen stated the American Bar Institute does not support the idea of courts of last resort sitting in panels. Further, in section 1.113 of the Standards relating to court organizations of the American Bar Association it states: Where a Supreme Court by reason of workload is unable to perform both of its principal functions, some additional mechanism of appellate review becomes necessary. This situation has long since prevailed in states with large populations and is becoming increasingly prevalent in states of smaller populations. The immediate necessity for an intermediate appellate court may be met or postponed by such devices as use of per curiam and memorandum decisions in cases having limited general significance, by limiting oral argument in appropriate circumstances, and by improved efficiency and management of the highest appellate's courts work. On the other hand, such expedience is dividing the highest appellate court into panels using commissioners to hear cases or eliminating oral arguments dilute the appellate function particularly that of developing the law. Adding additional justices to a highest court may actually slow down its operation rather than speeding it up. Hence, when improvements and efficiency of operation in the highest court cannot be achieved without dilution of the appellate function, the appropriate solution is the creation of an intermediate appellate court. Since there seems little prospect for a long run decline in the volume of appellate litigation, once the surge of appellate cases has been felt and the state having only one appellate court, steps should be taken forthwith to establish an intermediate appellate court rather than temporizing with substitute arrangements. Chief Justice Steffen stated the letter (Exhibit D) states the two additional justices can be added at an annual cost of approximately $700,000.00. However, his staff determined the amount would be more along the lines of $871,926 annually which is a conservative figure also. The study also indicated the net annual cost of an intermediate appellate would be approximately $1,194,758 the first year and $1,124,576 the second year, along with the utilization of staff between both courts. He stated the ultimate site for the intermediate appellate court would be Las Vegas. Chief Justice stated there is a major problem with building consensus, added debate, groups trying to reconcile differences, and comprising clear law in order to reach a consensus, a greater prospect of dissents and concurring opinions, and there is an impact on collegiality when you increase the number of justices. Mr. Sandoval asked how he would feel by increasing the number of justices to seven without including the language authorizing the use of panels. Chief Justice Steffen explained each justice would still have to read every piece of paper regarding any disposition before the court so the end result would be very little increase in productivity. Mr. Sandoval additionally asked how many cases would be relieved from the supreme court if an appellate court was established. Chief Justice Steffen estimated approximately 40% to 50% of the caseload. Mr. Carpenter asked why the people would now vote in favor of an intermediate appellate court. Chief Justice Steffen stated he was not necessarily pessimistic or optimistic about the people voting in favor of an intermediate appellate court. He feels the problem is the public has not been educated as to the needs and positive aspects of an appellate court to provide timely justice to our citizens and not to provide leisure time to the justices. Ms. Ohrenschall asked what percentage of the cases from the intermediate appellate court, if established, would then be appealed to the Supreme Court. Chief Justice Steffen stated nationally the average is 5% of the cases are accepted or appealed. He made reference to a study completed in 1990 by a committee of distinguished members. Chief Justice Steffen concluded by stating although he has made no attempt to seek names and bodies to come speak on behalf of his position; however, he could provide additional persons to testify before the committee if necessary in further support of his position. Justice Charles Springer, Nevada Supreme Court, stated there was no immediate need to add two more justices. The problem is as the caseload expands they get more cases that are easy to dispose of. There are a number of ways of addressing the problem of case overload without adding two more justices in an attempt to provide relief. To impose upon the court two more justices even as a temporary solution in anticipation of an intermediate appellate court would have a counterproductive effect and would be an unwise and expensive way of handling the problem. He stated the Washington intermediate court has adopted a system of commissioners who dispose of about 20% of their cases. He stated the gist of the studies presented by Chief Justice Steffen was that across the country judges sitting in panels has been tried and it does not work. Justice Springer concluded that adding two justices would be going backward rather than forward and is not supported by the facts. Assemblyman Bob Price, District 17, primary sponsor of A.B. 259 stated, with regard to Justices Springer and Steffen's comments on not having solicited anyone else for testimony today, he had talked with a number of persons about coming to testify in support of A.B. 259 and that is not unusual procedure at the Legislature, in fact it is normal. Mr. Price added his survey of states and the number of justices resulted in most states having five to nine supreme court justices. The increase in the number of justices seems to occur when population of the state reaches approximately two million. Nineteen states have five justices, one state has six, 23 states have seven, two states have eight justices, and five states have nine justices. He has not, however, performed a complete study as to how effectively these states are working with these numbers of justices. The thought behind A.B. 259 is if the workload increases, increase the workers. He stated the legislation could contain language along the lines that if an appellate court was approved by the voters you could take the two justices appointed, if A.B. 259 is passed, to revert back to the appellate level--if that was the desire of the committee. Mr. Price brought forth amendments to A.B. 259 which allow for panels of three justices rather than panels of five which is currently stated in the bill. The amendment is attached hereto as (Exhibit E). Mr. Price stated the method of selecting panels would need to be clarified in the bill. Upon Ms. Monaghan's inquiry, Mr. Price stated he views the establishment of an intermediate appellate court (S.J.R. 25) and the inclusion of two justices to the supreme court (A.B. 259) as two separate issues. William Morse, Attorney at Law, having practiced law since 1950 and having previously been a district court judge in Clark County, testified in support of A.B. 259. He believes the expansion of the Supreme Court provides a solution to obtaining timely justice to litigants in the state and those justices should sit in panels of three. He does not see the citizens of our state voting for an intermediate court of appeals. Mr. Morse addressed some of the Alternate Dispute Resolution programs currently underway throughout the state to assist case overloads in the courts. J. Charles Thompson, Assistant District Attorney, Clark County, past presiding judge for 20 years, testified in support of A.B. 259. He stated the District Attorneys Association has unanimously endorsed the concept contained in A.B. 259. Mr. Thompson asserted it was impossible for five justices to author 1200 opinions each year which is the amount of cases our supreme court is currently handling annually. He believes it takes too long for the vast majority of these cases to be resolved. Mr. Thompson stated it does not matter much to the average citizen if the decision is made by a panel or a 5-judge court so long as the process is fair, reasonably fast, and the result is just. He stated justice delayed is justice denied when it takes over two years to obtain a result. He concluded by stating the Ninth Circuit Court of Appeals effectively operates with panels of three so if it is good enough for them it should be good enough for the state of Nevada. Justice Cliff Young, Nevada Supreme Court testified in support of A.B. 259. He stated the situation was almost at a crisis stage at present in that last years' filings totaled 1,370. By January, 1998, the annual filings will increase to 1,899. Justice Young presented a graph, attached hereto as (Exhibit F) which indicated the steady growth of case filings and backlog cases. By January, 1998, the backlog cases will reach approximately 2,675 and the increase of case filings and backlog cases is not going to stop. The problem needs to be addressed immediately. He stated their job as supreme court justices, as he sees it, is to decide cases and get them out of the way. The judicial road is being clogged by the inability of the supreme court to process the cases. A 7-man court provides a solution to the problem. In addition, Justice Young proposes the justices should sit in July and August to hear cases and process them along. This is a luxury they can no longer afford as he sees it. Perhaps a 3-judge panel should sit during July and August to decide cases as this would provide a great service to the litigants of the state of Nevada. Currently, the supreme court does not hear cases during July and August to accommodate vacations and to catch-up on workloads. Justice Young stated the intermediate appellate court is a political matter and the justices need to compete for support just like legislators need to do in campaigning. Basically, it is all politics and for the supreme court members to go out and campaign and educate the public about the need for an appellate court would be a necessary element to accomplishing this end. In 1980, the appellate court issue lost by about 12,000 votes. In 1991, the appellate court issue lost by about 38,000 votes. This issue is losing ground. If the supreme court wants an appellate court they are going to have to campaign to get it. Justice Young concluded if they do not get an expansion of the supreme court by passing A.B. 259 they will be so far behind by 1998 it will take 3-4 years to get a case resolved by the Nevada Supreme Court. Attorney General Frankie Sue Del Papa testified in support of A.B. 259. She submitted a prepared testimony attached hereto as (Exhibit G). She briefly outlined the contents of her testimony which contains a letter from the past Attorney General, Brian Mackay, who expresses his support for A.B. 259, and statistics contained therein showing the growth in the state bar, the population, and the Supreme Court caseload. She stated Nevadans deserve service from their judicial department which they are not getting now because of the overwhelming caseload. Addressing Justice Springer's comments, Ms. Del Papa assured the committee there was no orchestration between Justice Rose and herself relative to the issues surrounding A.B. 259. She came by herself by virtue of the impact it has on our state and her office, the largest law firm in the state of Nevada. Mr. Anderson asked Ms. Del Papa if the enlargement of the supreme court would diminish the ability to establish rules. Ms. Del Papa stated by expanding from five justices to seven justices it would greatly add to the court's capacity to function in a better procedural manner. Ms. Del Papa also referenced an amendment in her prepared testimony (Exhibit G) which provides for the justices to sit in randomly selected panels of three rather than five. She felt positive Nevada could fashion rules that make the system more productive. She concluded that justice would be better served in our state if there were seven justices rather than five. Upon Mr. Anderson's inquiry, Ms. Del Papa stated she also supported the establishment of an intermediate appellate court; however, she agrees with Justice Young in that the people are just not going to vote for it and therefore we need to look at the alternatives. Chairman Humke announced the hearing on A.B. 259 would continue immediately after the Assembly floor session. The committee adjourned for a break at 11:30 a.m. and reconvened at 12:34 p.m. with a quorum present. Justice Miriam Shearing testified in support of A.B. 259. She stated last year the supreme court disposed of 1,075 cases and there were 30 dissents. That means, 97% of their cases are decided by unanimous vote. She does not see that changing simply by adding two members to the supreme court. There is not much disagreement even on the precedent-setting cases. Of the 145 opinions they decided without written opinions, she believes it would be of great assistance to not have to read and review even one-third of those cases to allow her to devote more time to cases she is on, especially the precedent-setting cases which need careful analysis. Justice Shearing explained Justice Steffen's comments about relieving the chief justice of some duties by the establishing panels. This, she stated, would not be so. If the chief justice wanted to carry a large caseload in addition to his administrative duties that would be up to him. However, it was simply proposed in their March 13 letter that there be some alleviation but it was not an integral portion of the bill. The chief justice spends approximately one-third of his time attending to administrative duties. Upon Mr. Anderson's inquiry and using the example of the rules not yet adopted by the Judicial Discipline Commission, Justice Shearing stated she did not see the process of adopting rules slowed down in any way by adding two additional justices. Ms. Steel asked Ms. Shearing for her thoughts on establishing a "commissioner" instead of appointing additional justices. Justice Shearing stated this would be allowing the staff to make decisions. Presently, the staff reviews cases and makes recommendations and write memorandums. These are the cases that do not go to oral argument. She asserted the states now utilizing commissioners allow the commissioners to make the ultimate decision and she does not see that as solution to the problem. A supreme court justice is responsible to the people in making decisions rather than a staff person whose responsibility is to the justices. Ms. Shearing stated she disagreed with the report prepared by the chief staff attorney which states seven additional people would be necessary on his staff in order to implement the inclusion of two additional justices. The proposition is to increase the workload and efficiencies of the justices and not of the staff. Certainly there would be an added law clerk for each and perhaps a secretary but not seven new staff members. Justice Bob Rose, Nevada Supreme Court stated he supported A.J.R. 17 but did not feel the voters would allow it. The voters' opposition is they do not want another layer of government; and they did not want another two or three million dollar bill. Therefore, he is not optimistic it will ever pass. Justice Rose stated the issue of the ever-increasing workload of the Nevada Supreme Court goes as far back as 1974. They need to take action now and allow the supreme court to sit in panels of three and add two additional justices. The people of the state of Nevada have approved the addition of two supreme court justices and the Legislature can make that happen. He feels justices sitting in panels would serve the purpose of hearing more cases more rapidly and also allow for a permanent panel in southern Nevada to hear cases. Justice Rose stated adding two supreme court justices is a solution that will serve the needs of the people and will provide assistance now rather than waiting another three years to see if the voters will enact an intermediate appellate court. Ms. Steel discussed with Justice Rose the difference between being appointed versus being elected. Ms. Steel's concerns centered around if the justices were appointed effective October, 1995 then within a year they would have to run an election while still proving themselves in their position. In addition, Ms. Steel inquired about "inferior judges" if one has a possibility of not serving out his term because he becomes that sixth or seventh jurist that would then go down to the appellate court. Justice Rose did not feel there would be a problem in either of these areas. Justice Rose concluded that since 1968 there have been 28 district court judges appointed in the state of Nevada. Adding two justices is the cheapest and quickest way to address the problem existing in our supreme court. Chairman Humke introduced into the record the following exhibits which were provided to the committee without oral testimony: Letter dated April 3, 1995 by the State Bar of Nevada stating their support for A.J.R. 17 and A.B. 259; Letter dated March 20, 1995 by Norman Ty Hilbrecht, Esq., supporting A.B. 259; Letter dated April 3, 1995 by Charles M. McGee stating he is in favor of the supreme court augmentation bill, set forth herein as cumulative (Exhibit H). There being no further business before the committee, the meeting adjourned at 1:03 p.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 3, 1995 Page