MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 10, 1995 The Committee on Judiciary was called to order at 6:08 p.m., on Monday, April 10, 1995, Chairman Anderson 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. Thomas Batten 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 GUEST LEGISLATORS PRESENT: Assemblyman Robert (Bob) E. Price, District No. 17 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Honorable Justice Miriam Shearing, Supreme Court Ms. Patricia Justice, Legislative Representative, Clark County Ms. Lucille Lusk, Nevada Concerned Citizens Lieutenant Stan Olsen, Las Vegas Metropolitan Police Lieutenant Phil Galeoto, Reno Police Department Mr. Ben Graham, Nevada District Attorneys Association/Clark County District Attorney's Office ASSEMBLY BILL NO. 149 - Removes certain felonies involving use of firearm from jurisdiction of juvenile court. ASSEMBLY BILL NO. 150 - Makes various changes regarding jurisdiction of juvenile courts. Mr. Ben Graham, Nevada District Attorneys Association/Clark County District Attorney's Office, advised the aforementioned bills submitted by Clark County Juvenile Division early on are incorporated in A.B. 317. Mr. Graham requested they be set aside at this time. ASSEMBLYMAN SANDOVAL MOVED TO INDEFINITELY POSTPONE A.B. 149 AND A.B. 150. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Chairman Anderson advised there will be no testimony today, as it will be a work session dealing with the following: ASSEMBLY BILL NO, 259 - Increases number of justices of Nevada Supreme Court and authorizes use of panels. Mr. Dennis Neilander, Research Analyst, distributed proposed amendments submitted by Assemblyman Price and the Attorney General's Office. Essentially this would reduce the panels to three judge panels. The bill proposed a five judge panel scheme. It also changes the language so the Supreme Court may sit and decide cases in panels of three judges. There is also a technical amendment to subsection 2 which states that the full court may assign to a panel any case over which the Supreme Court has jurisdiction. In addition there was an amendment suggested regarding a panel being selected by law on a rotating basis. These were the concerns raised during the hearing. Ms. Steel mentioned the judges may be elected as opposed to being appointed. Mr. Neilander confirmed Ms. Steel raised a concern with having the initial judges appointed rather than elected at the first general election and elected thereafter. Chairman Anderson asked if this could be accomplished by moving section 4 back to a later date, p. 2, ll. 15-18. Whether through this process or any future process, Ms. Steel suggested placing a sunset provision into the bill in the event the appellate court system is approved. Chairman Anderson asked Ms. Steel if it was her recommendation to delete ll. 15-16. Instituting the appellate court system in spite of the electorate indicating twice they do not want an appellate court, Ms. Steel stressed the electorate should have some voice in the election of two new Supreme Court Justices. Ms. Buckley inquired in the event the intermediate court of appeals is approved by the electorate, what provision would be made to reduce the number of justices. From her notes of the hearing, justices appointed or elected would be placed in the intermediate court. Additionally, in response to the suggestion the panels be rotated, the proposed amendment to p. 1, section 1, and 2, insert, "randomly selected" before panels. It does not indicate how the process would work. Justice Rose suggested every six months at random. When the judges sit in panels, Mr. Batten asked Mr. Neilander if it would work like a subcommittee. As Mr. Neilander recalled testimony, there would be two panels of three justices. Mr. Batten questioned if a defendant is brought before one of the panels and is dissatisfied with their decision, can the case be calendared before the whole group of justices. Mr. Neilander replied the whole group would have to decide if they wanted to sit en banc to decide the case. Testimony was now they can delegate the cases in accordance with their precedent setting values. Mr. Batten pointed out they could end deciding that all the justices hear the one case. Therefore, not necessarily decreasing the caseload, it would be totally ineffective. Because what you tried to prevent, you are not preventing because this could possibly happen. The testimony was currently there is a low percentage of cases that actually result in a written opinion when there is a split decision among the justices. Ms. Monaghan stated she has trouble with this bill when everyone says it is not the answer; but they have no alternative since the voters will not consent to an appellate court. This bothers her a great deal. It is more palatable when it is not appointed by any particular person, but through an election process only. Ms. Monaghan shared Mr. Batten's concerns of just adding another layer. She was not convinced and could not support this bill. Chairman Anderson commented Mr. Batten may recall testimony that it would not create a second level of court of appeals to expedite the hearing process. Mr. Sandoval added his recollection of testimony. There were only 40 opinions that were drafted that had dissenting opinions. Those would be the 40 cases that would be referred to the full court. Hopefully, this will alleviate Mr. Batten's concerns. Mr. Batten asked if Ms. Monaghan was referring to an election rather than an appointment of the justices. Ms. Monaghan advised no appointment until an election could be held. As a practical matter Chairman Anderson asked members to limit the discussion to the question of election versus appointment. Chairman Anderson took an informal poll to determine if A.B. 259 was worthwhile to continue work on. The committee agreed to continue the discussion. Ms. Steel remarked making an appointment midstream would be to rob the voters. Ms. Buckley advised she supports the Missouri plan. She liked the process whereby a group of attorneys and the public process applications of justices and choose those whose length of experience and time have proven to be of high caliber. They will face election and challengers. The caliber of judiciary is very important. Mr. Carpenter stated he was in support of elections. If we were looking at one year we may have to consider appointments because it is one year until elections. Ms. Ohrenschall commented in regard to obtaining a high caliber individual by appointment. She reminded the committee two individuals are in the room this moment by the election process not by appointment. She saw no reason not to trust the voters to make equally sound choices today as they have in the past. Chairman Anderson drew attention to articulate the amendment as put forth by Ms. Steel as close as possible: Page 2, eliminate ll. 15-18; to renumber No. 5 to be No. 4, so that they are elected at the general election; ll. 46-48 to make it comply with the existing No. 5 that the justices elected at the general election of 1996 would not expire in January, and that their salary be $85,000. In addition, amendments to subsection 1 and to put in a short clause yet to be devised. Ms. Buckley wondered if there was a way to make it earlier than 1996 to deal with the caseload issue. Chairman Anderson advised 1996 is the next earliest opportunity. Ms. Buckley was concerned with the backlog of cases for the next year. Ms. Stroth inquired if the term of office was consistent with the Supreme Court Justices for six years instead of four years. Chairman Anderson confirmed it will remain the regular term of office. Ms. Steel added that if the justices were appointed for one year and have to run for election the next year, this is another reason to go ahead with the elections. ASSEMBLYMAN STEEL MOVED TO AMEND A.B. 259. ASSEMBLYMAN MONAGHAN SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON, BUCKLEY, GOLDWATER, SCHNEIDER, PERKINS VOTED NO.) Proposed sunset provision: ASSEMBLYMAN BUCKLEY MOVED IN THE EVENT AN INTERIM COURT IS APPROVED WITHIN THE SIX YEAR TERM OF THE JUSTICE THAT THE TWO NEWEST JUSTICES WOULD BE TRANSFERRED TO THE INTERMEDIATE COURT OF APPEALS. Under discussion, Ms. Buckley stated if for some reason it failed on the ballot the next six years, she would not want the person to have this over their head for eighteen years. Ms. Steel shared Ms. Buckley's concern. If the justices keep getting re-elected in appellate court, with all the new justices in the first five seats and only two people get re-elected, they should be able to stay on Supreme Court. Mr. Sandoval shared the same concern. Mr. Perkins wondered if in the next six years, we could have more junior justices to be elected after some terms expire. Would we be reverting two justices with seniority from the Supreme Court to the intermediate appellate court instead of those that are most junior? Mr. Humke requested clarification if the proposed seats would be F and G, since the existing ones are A through E. Was that the intent of the maker? Mr. Humke commented the bill builds in predictability both to the voters and incumbents who hold those seats. This is one thing to be set forth. Then as the persons who turn over in those seats change, everyone knows who would go into intermediate court of appeals because that could be ten years downstream. Chairman Anderson agreed with Mr. Humke. If we are going to do this with a sunset provision, Chairman Anderson advised this has to be tied seats and not the last two people to be elected. Mr. Goldwater would be more confident not to put the sunset provision into the bill. He asked, with the caveat that the legislature meets every two years is this something we need to deal with in this bill or is it something future legislative bodies can consider repeal if we do pass an intermediate appellate court? Is this a reasonable consideration? Ms. Buckley answered it is. It raises that the motion could be altered instead of having six year cap, it could be just that in the event that the intermediate court is approved on the next ballot. The two justices would be moved. In this manner is it capped for two years and does not create the artificial E and F; and, it does not have the concern of Mr. Perkins in that we are transferring it. When an appellate court is established, Mr. Carpenter stated the justices elected in 1996 should be assigned to the appellate court. Mr. Carpenter stated the justices elected should be able to sit on the appellate court if established. Ms. Buckley stated three proposed amendments: In the event the intermediate court is approved the two justices would be transferred to that court; within a six year time period of their term; and, creating permanent seats if and when an intermediate court is approved. There is a mechanism in place to transfer the two justices back down. Mr. Humke respectfully submitted to the Chairman to set aside this particular issue. He suggested reviewing all the amendments and see if it ultimately passes. Then proceed to the other bill, A.J.R. 17, dealing with the intermediate court of appeals. Chairman Anderson advised support if we pass the sunset provision. He stated the time factor is not needed because in the future if intermediate court is established, regardless of who is sitting in those seats at that time, even though it may be a more senior member, it would be most proper for the two seats to be eliminated because they are the last two created. It is not the individual but the seat we are discussing. It creates unusual circumstances. It is not without trial and error. SENATE JOINT RESOLUTION NO. 25 OF THE 67TH SESSION - Proposes to amend Nevada constitution to create intermediate appellate court. ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE S.J.R. 25 OF THE 67TH SESSION. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Under discussion, Ms. Buckley advised she could not support the motion. Ms. Buckley had some experience at the University of Arizona with the intermediate court of appeals. It worked well. There was no need to go into panels and to have the problem of in-bank hearings which duplicates the workload. From practicing law it is the best alternative. Mr. Goldwater differed with Ms. Buckley for two reasons: the voters have spoken on this issue and it is our job as legislators to respond to it; not convinced by the cost argument. He had geographic concerns related to the cost issue. As a representative from the south, he saw nothing in S.J.R. 25 that will address the disparity between the north and the south. If something was done to address this issue, he was troubled that the cost factor would be greatly increased. He supported the motion for indefinite postponement. Ms. Monaghan advised she will not be in support of the motion. Mr. Humke voted for a lot of proposed constitutional amendments and other issues that go to the vote of the people. In two recent instances this issue has been before the voters; and, the second time it was more soundly defeated by them. They have spoken. Ms. Ohrenschall concurred the voters have spoken. It is not up to legislators to tell them whether or not they have spoken correctly. They have given us their decision; and, we need to honor it. Mr. Carpenter spoke in behalf of his motion. He believed A.B. 259 will pass; and, it is the most common sense thing to do under the circumstances. If the appellate court is put on the ballot to elect two more justices, the voters are going to be absolutely confused. If the appellate court was approved, he would be in favor of it; however, he did not think it will pass. It will cost a horrendous amount of money to set up an appellate court. In reviewing letters from the justices, attached as (Exhibit C), and lawyers in the state of Nevada, who recommend putting two more people on the supreme court is the way to go. For that reason, Mr. Carpenter stated it should be done and not put the appellate court on the ballot. It will thoroughly confuse the issue. Members of the Assembly will be in for wide criticism. THE MOTION CARRIED. (ASSEMBLYMEN BUCKLEY AND MONAGHAN VOTED NO.) ASSEMBLY BILL NO, 259 - Increases number of justices of Nevada Supreme Court and authorizes use of panels. Mr. Dennis Neilander, Research Analyst, reviewed the amendment in subsection 1 to provide the supreme court may sit, hear and decide cases in panels of three rather than five. Also, there is an amendment in the same subsection to allow that these panels be appointed by random selection. Add the language in subsection 2, "a full court may assign to a panel any case of which the supreme court has jurisdiction." Finally, p. 2 for the initial election, the two new justices rather than an initial appointment, the election will be for six year terms. The election will be held in 1996. The justices begin sitting in January of 1997 with a salary of $85,000 per annum. Chairman Anderson remarked Ms. Buckley decided there is no need for the sunset provision. ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS A.B. 259, AS OUTLINED BY MR. NEILANDER. ASSEMBLYMAN PERKINS SECONDED THE MOTION. Under discussion, Mr. Goldwater urged southern committee members to support the motion. Cases can be heard in the south to accommodate southern constituents. Mr. Carpenter, as a representative of southern Elko County, requested support for the motion. Ms. Stroth advised the appellate issue is going to go away. If A.B. 259 is passed with the additional supreme court justices and appellate court system established later, would we be able to decrease the size of the court. Chairman Anderson believed a future legislative body will have that ability. Mr. Neilander replied the constitution was amended in 1977 to allow the legislature the ability to add and reduce justices. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Humke was asked to handle the bill upon the floor and he accepted. ASSEMBLY BILL NO. 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Mr. Dennis Neilander, Research Analyst, advised previously the sentencing commission, section 17, was skipped in order to fully deal with the habitual criminal statute. The other major substantive component begins at section 27, residential confinement. Chairman Anderson preferred to begin with section 17, sentencing commission. These sections repeal the existing penalty sentencing commission and re-establish a commission on sentencing. The bill prescribes the membership and requires the examination of all components of the criminal justice system in regard to sentencing. The commission is required to report the findings and recommendations to the legislature on a biennial basis. The duties of the Department of Prisons are described regarding the collection of statistics and reporting to SIIS commission. Also, Department of Administration is required to assist the commission by providing an independent entity to contract with for purposes of projecting prison populations and also work with Department of Prisons in that area. There have been a number of amendments suggested. Mr. Neilander reviewed the first suggestion of the membership of the sentencing commission be expanded to add a member from a victim's rights organization. Also, suggestion to add a member from the private criminal defense bar, state bar. There were suggestions to also reduce the membership. In addition, Ms. Steel recommended the committee be re-focused in terms of how it is established. She suggested a statutory standing committee. Technical revision on p. 15, l. 10, to insert changes in the sentencing structure instead of guideline since guideline is a term of art to describe the specific type of sentencing scheme. Those are the extent of the amendments. In discussing the commission to reach an understanding, Chairman Anderson asked Mr. Neilander what was the nature of their authority. Mr. Neilander responded it would have to be advisory. Mr. Anderson inquired if a group of legislators composed the sentencing commission, would it change its ability to change laws or would it still remain only advisory. Mr. Neilander advised the legislature as a whole is the only body that can effect statutes. Even if it were composed of members from the legislature, it would still have to be advisory in nature, i.e., public land committee or health care. Ms. Steel still believed the making of laws is in the purview of legislature. A statutory legislative body would be better in this capacity. Ms. Steel stated you could have the judges select the judge. The state bar to send an attorney over for advisory information and technical resource. Ms. Steel saw no need to collect a bunch of people that are not lawmakers. They are administrators. Legislature is set up to deal with fiscal information. She maintained it should be legislative body. Ms. Monaghan advised she has problems with sentencing commission. She pointed out there are senatorial bills that could in effect make it unnecessary. Ms. Monaghan was of the opinion not to delegate her job to someone else. She believed it was the legislator's job to do that. Chairman Anderson advised he had reviewed Senator James' bill. In discussion with Senator James, he is of the opinion that the commission would not detract from the work that the senate has done. The work of the senate bill is in no way related to this particular piece of legislation. They are in fact complementary. Mr. Humke inquired from Mr. Neilander if it was a statutory committee; therefore is it more like a public lands committee or interim study committee. Mr. Neilander replied it would be more like the public lands committee in the sense that it is perpetual. It has a continuing duty to report back to the legislature every two years much like some of our statutory committees are. The difference being it does have a broader membership. On p. 14, subsection 17, l. 15, of the work document, Mr. Humke noted reference to employee of commission and asked if commission would have its own employees. It was Mr. Neilander's understanding the Governor's budget does contain funding for two staff persons to assist the commission in its ongoing duties. There is one administrative and one professional position that could be clarified by Ms. Springgate. Ms. Margaret Springgate stated there are two positions to be held in the Department of Administration to offer full time services to the commission. With regard to the concerns expressed, Ms. Buckley was hesitant in giving away job duties for the reason why she was elected to be here. There are two things that are assuring to her: we are going to deal with truth-in-sentencing this session, whether in Senator James' bill or in another bill. She felt very strongly the legislature is going to look especially at the violent crimes and look at meaningful reforms. At the very least both the assembly and the senate want to ensure that there is truth, meaning sunshine that people know what people are being sentenced for. We do not know that now. Ms. Buckley was confident that will pass. She visualized the sentencing commission as being more or less a conglomeration of people who actually deal with criminals on a day-to-day basis, i.e., DA, AG, law enforcement, Department of Prisons. These people can bring us back along with the four members from the assembly and senate to work on refining the system and make recommendations to legislature with a staff person. Additional recommendations for enactment will be addressed in the next session. For the foregoing reasons, Ms. Buckley supported the sentencing commission. Assuming it would not be a legislature function, Mr. Goldwater inquired if it would be funded through the legislature and staff would be Legislative Counsel Bureau. Mr. Neilander advised it could go that way depending on what the committee proposed. Sections 19 and 20 are revised duties for both the Department of Prisons and Department of Administration. Currently the funding is within the executive branch. Ms. Ohrenschall requested clarification of Mr. Neilander's statement of a sentencing commission already in existence, and this legislation repeals the current statute in order to create a new sentencing commission. Mr. Neilander advised the existing commission met in 1985 under Justice Springer and made some recommendations to the legislature some of which were eventually adopted. The commission thereafter did not meet because of a lack of funding. That commission was not staffed to any degree. They met during the course of one year from which a report was produced. The proposal changes the membership and duties of that commission. Additionally, it provides funding which the other did not have. Ms. Ohrenschall asked if the authorization for the previous commission still exists. Mr. Neilander advised it is existing by virtue of the statute right now. The existing commission was a mixed commission of legislators and members of the executive branch. It was an ongoing commission; but, it is one that has been inactive. Ms. Ohrenschall inquired if the existing commission made any recommendations that were adopted or are in limbo. Mr. Neilander offered to provide a copy of the 1986 report. They did adopt a number of recommendations; and some they did not. Chairman Anderson advised he has a copy of the report in his office available for review. Ms. Ohrenschall inquired if there was any unfinished business of the commission. Ms. Springgate recently reviewed the report. Ms. Springgate advised the Springer commission developed a number of recommendations. Primarily, they reviewed the history of sentencing across the United States. One recommendation is incorporated in the Governor's crime bill. This is the proposal that the sentencing judge who has suspended the sentence and granted probation, if the defendant violates probation, the sentencing judge will be allowed to re-visit the sentence given the specific circumstances of the violation. The primary recommendation of the Springer commission was additional funding, provided permanent staff, and commission be made ongoing. Ms. Ohrenschall advised she will do her own research later because she did not understand why repeal existing commission to set up another. Why not take what we have and build upon it? Ms. Steel restated people elect legislators to look at the laws. The administration is elected to administer those laws. The legislature should be the primary component of this commission, no matter if it is statutory or otherwise. The administration should be there as they are always for the legislature in their testimonial and support positions. Mr. Sandoval stated a sentencing commission is needed to review the legislation enacted this session. If it is appropriate, he had an amendment to the composition of the sentencing commission. ASSEMBLYMAN SANDOVAL MOVED TO AMEND COMMISSION ON SENTENCING IN A.B. 317, COMPOSED OF 13 MEMBERS, 4 OF WHOM WOULD BE MEMBERS OF THE ASSEMBLY; 3 MEMBERS OF THE SENATE, WITH THE CHAIRMAN COMING FROM THE LEGISLATIVE MEMBERS; 3 MEMBERS APPOINTED BY THE GOVERNOR, THOSE BEING A VICTIM, MEMBER OF LAW ENFORCEMENT, EMPLOYEE OF PAROLE AND PROBATION; ONE MEMBER BEING A JUDGE NOMINATED BY THE JUDGES ASSOCIATION; ONE MEMBER BEING A DISTRICT ATTORNEY NOMINATED BY THE DISTRICT ATTORNEYS ASSOCIATION; AND ONE MEMBER BEING A MEMBER OF THE PUBLIC DEFENDER NOMINATED BY THEIR OWN ASSOCIATION. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Under discussion, Mr. Goldwater inquired if a member from law enforcement was inadvertently overlooked. Mr. Sandoval replied a member from law enforcement could be substituted for the employee of the Department of Prisons. Ms. Springgate suggested that instead of the public defender association member have a representative of the state public defender's office to ensure rural representation. Ms. Springgate asked if there would be a problem with separation of powers. Mr. Sandoval commented it was his intent to keep in place the commission on sentencing and not to bring it as a legislative interim committee. Chairman Anderson called upon Mr. Neilander to answer the questions of constitutionality and separation of powers. Mr. Neilander advised we would have to have a specific proposal before we could look at that. If it is the committee's desire, Mr. Ben Graham remarked since there is no public defenders association, it is not a roadblock to figuring out how a public defender could be selected. Mr. Carpenter expressed a concern about the sentencing commission in putting people on the commission with no power to vote. The legislature is the one that has to make the final analysis. Therefore, the commission should be made up of predominantly members of the legislature. The other groups are to give information and help in the decision making process; but, not to actually make the decision. Mr. Carpenter served on a number of interim committees. Even if they are predominantly legislative in nature, there is a real problem in getting their recommendations through the legislature. With all the aforementioned appointees on the commission, it will be very difficult to work with this large commission. When it comes back to the legislature, everyone will be testifying to get their viewpoint across. If it was a permanent legislative committee, like public lands, it would have a much better chance of working. It would be ongoing and it would be staffed by legislative people which is a big plus. When it comes down to the nitty gritty, the legislature has to make these decisions. One is in a better situation to talk to the legislators of what their feeling was rather than a great large commission. With many people and diversity of viewpoints, it will be very hard to come to any kind of decision. Ms. Ohrenschall agreed with Mr. Carpenter's comments. Also, legislators were the ones elected by the people in their district and delegated responsibility. There is a possible separation of powers issue. The idea of Mr. Carpenter's proposal of a standing commission seems to be a better alternative. Ms. Steel commented the legislative committee on public lands, one member is an elected public official. So long as it is a legislative committee, it is not known if there was a separation of powers problem there. Mr. Batten recommended deleting the public defender's office from the commission. However, a member from law enforcement from the rural area should be appointed. He asked the committee to support his recommendations. Mr. Humke inquired of Ms. Springgate who shall direct executive branch staff if it is a legislative creation. If it is a constitutional separation of powers problem and a legislative committee, the staff should be Legislative Counsel Bureau. Mr. Carpenter made a point about legislative control. Mr. Humke served on mixed legislative interim committees where everyone has a vote and some where only legislators have a vote. Mr. Humke agreed with Mr. Batten. There is a possible need for a law enforcement officer. To keep the number the same with all due respect to the Department of Prisons, that agency does not affect how sentences are handed down and only executes the sentences. It could be a possible substitution if the committee wanted to consider it. Mr. Humke saw a possible need for a county commissioner since some of the sentences have to do with sentences that could be served in county jails. Those who pay the bills ought to have a seat at the table. The public defender classification suggested either a public defender representative or a public defense bar member. Mr. Humke agreed at least one should be a rural resident. Mr. Perkins expressed concern how A.B. 317 was started and ended to this point. This commission was not put together by the Governor's office. This was a commission put together by law enforcement, prosecutors, and by several other people within the state. It was not just thrown together. It was put together by the people who actually deal in the street and at the level of the policy that was put forth. It does not abrogate the legislature's responsibility. It is a commission that will study what the laws are, levels of penalties, and to find some equilibrium to employ. Legislature is still the last level of resort. Without this body actually changing the law, it does not happen. We have the last say. This commission as proposed with minor modifications can work in complement with the legislature, not in competition. If we grind through each and every sentence that occurs, this legislative session will last well beyond July. Some issues could be debated for months. The ability of the commission is to do that for us and present in summary fashion with supporting evidence for this legislative body to make the final decision. When there are seven members from the legislature as opposed to six members from the areas that have expertise, we are replacing experienced members on the commission with ignorant members on the commission. The ignorance coming from the legislature. It is not meant in a demeaning way. Legislators come here to find out. It is the experience needed on the commission to do the work and make recommendations. Using the prerogative of the Chair, Chairman Anderson applauded Mr. Sandoval's concerns. He suggested in the alternative to go back to the eleven voting members for discussion purposes. Chairman Anderson proposed the district judge be appointed by the district judges association. The district attorney be appointed by the district attorneys association. A public defender appointed from the membership of the defense bar. The attorney general be eliminated. In its place a county commissioner be substituted selected through the county managers association. A member of law enforcement be selected through a law enforcement agency. Department of Prisons be removed, but the Division of Parole and Probation be retained. The victim's rights member be retained in place of Department of Prisons. The sentencing commission will consist of 11 members: four would come from the legislative body of two assemblymen and two senators. The Governor would appoint the Chairman from the group. There would be four members of legislature, a county commissioner, and a member of the public. Six of the 11 should be brought to discussion. As an alternative Chairman Anderson offered the aforementioned for discussion purposes, realizing there is another motion before the committee. Ms. Stroth requested clarification if the Governor's appointment would be from the whole commission or from just the legislators. Chairman Anderson advised the Governor would have the opportunity to select a chairman from among the 11 members. Ms. Steel agreed with Mr. Carpenter's earlier statement. This needs to be legislative in nature and not administrative. Ms. Steel stated legislators are the ones that have to vote on this ultimately. Provisions brought to legislature that may be unworkable by the administration still have to be voted on by the legislature. Ms. Steel repeated she is strongly in favor of Mr. Carpenter's idea that it be a legislative committee. If not, Mr. Sandoval's proposed amendment would not be distasteful to Ms. Steel. Legislature is elected to look at these laws. They know how to look at laws. They have to bring us the information whether or not we are sitting in this legislative body or legislative committee. Ms. Steel concluded it is not anything to do with the Governor. It has to do with who is supposed to be deciding these laws. Any one of these people proposed for membership can come and give testimony whether in this body or legislative committee body. With the remarks made earlier by Mr. Perkins, he stated it was important to have a summary before making a decision. He agreed with Mr. Carpenter to the point that the legislators on committee would have the responsibility for the voting for any substantive changes in sentencing structures. Mr. Perkins recognized there is a motion existing already that the legislators retain the membership on the committee that the chairman has suggested. However, they be the voting members of the sentencing commission. They can bring that information back to the body with their recommendations. Chairman Anderson confirmed Mr. Perkins was in support of the 11 member commission, 4 members of the legislature having voting power within the 11. Mr. Perkins suggested in case of a tie another voting member could cast a vote. Mr. Humke suggested that if the legislators had the only votes and the Governor had the appointment power of the chair, it would not work well. At the beginning, you may as well set out the chair appointment would come from one of the legislators. This leads to the earlier issue of the separation of powers. If there is to be staff for this commission, as a practical matter the staff should be of the same branch of government. Chairman Anderson asked Mr. Neilander if the Governor would have the ability to appoint a chairman from the group. Mr. Neilander advised p. 14, ll. 4-5, provides the Governor shall designate one member of the commission to serve as chairman. It does not limit the Governor's ability on who to appoint. Chairman Anderson inquired if this would create a separation of power question. Mr. Neilander advised he would have to review the Springer report again; but, he believed Justice Springer was in the judicial branch. He chaired that particular committee. Ms. Buckley commented the four members would no longer be a majority. At least under that type of analysis, it would not be an issue. Although certainly if it is done being on the commission in the first place, it still would be. The idea of having only the members of the assembly and senate have a vote would address the concern that legislators are the elected officials. They need to be responsible for what is happening. Ms. Buckley did not see it being a problem in the commission's operation because all parties need to work together. Everyone has the same goal in mind, whether it is in the district attorney's office, judges, prison, or the legislature. Sensible, tough on crime sentencing developed that is not going to break the state's back. Ms. Buckley did not see that as being a problem. Chairman Anderson advised Mr. Sandoval's motion is on the floor. Mr. Carpenter stated the best thoughts should be taken. As far as staffing is concerned the money could go to the Legislative Counsel Bureau to staff it. The staff person would carry over into the next session and knows the background. He suggested five voting members of legislators be appointed rather than four in addition to the Chair's selection. Mr. Sandoval restated his proposed motion: ASSEMBLYMAN SANDOVAL MOVED TO AMEND COMMISSION ON SENTENCING IN A.B. 317, COMPOSED OF 3 MEMBERS OF THE ASSEMBLY WITH ONE LEGISLATOR FROM RURAL NEVADA; 2 MEMBERS OF THE SENATE, WITH THE CHAIRMAN COMING FROM THE LEGISLATIVE MEMBERS; 3 MEMBERS APPOINTED BY THE GOVERNOR, THOSE BEING A VICTIM, MEMBER OF LAW ENFORCEMENT, EMPLOYEE OF PAROLE AND PROBATION; ONE MEMBER BEING A JUDGE NOMINATED BY THE JUDGES ASSOCIATION; ONE MEMBER BEING A DISTRICT ATTORNEY NOMINATED BY THE DISTRICT ATTORNEYS ASSOCIATION; AND ONE MEMBER OF THE DEFENSE BAR TO ENSURE RURAL REPRESENTATION; ALSO, ONLY 5 MEMBERS OF LEGISLATURE BE VOTING MEMBERS OF THE COMMISSION; THE CHAIRMAN BE A MEMBER OF THE LEGISLATURE; AND STAFF BE EMPLOYED BY LEGISLATIVE COUNSEL BUREAU. Chairman Anderson asked Mr. Ben Graham if he understood the foregoing motion. Mr. Graham stated it was a positive step. It basically represents the efforts of the Governor's office. It is workable. The committee of experts is not included as might have had originally under this plan; but essentially, it is about the same. Chairman Anderson recognized that obviously the foregoing motion is not what Ms. Springgate had hoped for and asked if it would accomplish the goals. Ms. Springgate advised of executive branch concern with the staff person being a member of Legislative Counsel Bureau because it was their intent to have a person as a part of the administration being a person very involved with understanding fiscal impact of the sentencing and budget process. There are 22 states that currently have sentencing commissions. Not one of those states have legislators who are dominant members. Ms. Springgate will have to confer with the Governor regarding the proposed amendment. Mr. Carpenter proposed that not more than 10 of the members represent the two larger counties in order to have rural representation. Chairman Anderson confirmed from Mr. Carpenter if he proposed to have two members from a rural area. Mr. Neilander advised the State Public Defender's Office represents rural areas. In larger populated counties those services are provided on a contract basis. Mr. Neilander suggested on the legislative commission that they appoint one legislative member from a rural county. With regard to the others, one would have to be picked because of associations nominating members. Ms. Buckley offered a friendly amendment of deleting the county commissioner. While they would be effective on the jail type sentences, she believed the district attorney or the judge would bring back the fiscal implications to them. It would allow a tighter body and still have accountability in reporting. Ms. Buckley advised this would be her amendment. Chairman Anderson confirmed this would bring us back to a commission of 11 members. Mr. Sandoval agreed with the foregoing amendment to his restated motion. Seconder of the motion, Mr. Humke agreed to Mr. Sandoval's amendment of his motion. Mr. Carpenter commented the State Public Defender does not express the views of rural Nevada. Ms. Monaghan requested clarification if they were just changing the membership. Chairman Anderson advised the committee discussed the makeup of the commission and it would be a continuing commission. Current discussion evolved around 3 assemblymen, 2 senators; three appointments by the Governor, one from the victim, law enforcement, and Parole and Probation. The county commissioner has been dropped, one from judges association, one from district attorneys association, and one from the State Public Defender's Office. The commission will consist of 11 members. Mr. Sandoval clarified the 5 members of the legislature would be the voting members and that the chairman would indeed be nominated or appointed by the legislative commission. Chairman Anderson advised the staff would come from the legislative commission. Ms. Buckley inquired if the original motion for a public defender or a member of the criminal defense bar be available to represent the rural areas. Mr. Sandoval clarified the original motion was an individual from the State Public Defender's Office with the intent in mind to have rural representation. Mr. Sandoval remarked that soon we will have a left-handed, blonde haired member. Chairman Anderson agreed that the camel was built by a committee. Mr. Carpenter suggested that one of the legislative members be from rural Nevada and the defense bar be substituted for the State Public Defender. Ms. Buckley expressed support for that suggestion. Chairman Anderson stated it is the intention that Mr. Carpenter's amended version to the Sandoval-Humke motion, amended version, of the 3 legislative members, one of them be from a rural area. The State Public Defender's Office be replaced by a member of the defense bar. Mr. Goldwater requested clarification if the motion was for a district attorney or a representative from the district attorneys association. Chairman Anderson advised it would be a representative from the district attorneys association. Ms. Ohrenschall concurred a rural member from the legislative members of the commission be appointed in accordance with Mr. Carpenter's proposal. Chairman Anderson announced a vote will be taken on Mr. Sandoval's perfected motion, seconded by Mr. Humke. THE MOTION CARRIED. (ASSEMBLYMAN GOLDWATER VOTED NO.) Chairman Anderson requested research analyst to bring the amendment back to committee for review and clarification. The following bill draft request was submitted to mandate that a district attorney must prosecute as a habitual criminal any person charged with a felony which includes the intent to defraud any person aged 65 or over who at the time became a victim was facing a major life crisis in his family including but not limited to a catastrophic illness, if a defendant has been twice previously convicted of a like felony. Ms. Ohrenschall requested this bill draft include in the event that the said defendant is convicted, he may be given the option of making 100% restitution to the victim within 30 days of the conviction which will stay the habitual criminal penalty. ASSEMBLYMAN OHRENSCHALL MOVED TO REQUEST A BILL DRAFT. ASSEMBLYMEN HUMKE AND ANDERSON SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMAN SCHNEIDER VOTED NO.) There being no further business to come before the committee, the meeting adjourned at 8:25 p.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary April 10, 1995 Page