MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 13, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Tuesday, June 13, 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. 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 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Leonard Gang, Nevada Commission on Judicial Discipline Honorable Michael Griffin, Nevada Commission on Judicial Discipline Guy Shipler, Nevada Commission on Judicial Discipline Colonel David Pennington, Legal Counsel, Nevada National Guard Captain Greg Schlaval, Nevada National Guard John Patton, private citizen Christina Chandler, Court Administrator, Eighth Judicial District Court Warren Hardy, Desert Sportsman Rifle & Pistol Club Elmer Leroy Miller, Desert Sportsman Rifle & Pistol Club John W. Riggs, Sr., Nevada Gun Owners Don Mello, Director Administrative Office of Courts Chairman Humke noted a quorum was present. SENATE BILL 369 - Revises provisions governing commission on judicial discipline. Leonard I. Gang, General Counsel Executive Director, State of Nevada Commission on Judicial Discipline stated S.B. 369 provides immunity to the commission on judicial discipline and for persons performing services for the commission. Mr. Gang continued Sections 1 and 2 are introductory. Section 3 provides immunity for the commission. The bill uses language "absolute immunity" which is equivalent to "judicial immunity" enoyed by all judges in the state of Nevada. Sections 4 and 5 contain language clean-up and a portion that removes the Attorney General from acting as counsel in the investigation of proceedings before the commission. This is done in accordance with the recent Supreme Court decision evolved through the Whitehead litigation. Mr. Gang informed the commission hires attorneys to act as special prosecutors and investigators to investigate matters before the commission. These persons serve as independent contractors. Section 8 provides the effective date and provides retroactivity from 1990. Mr. Gang continued in discussing the "absolute immunity" provision including with his testimony a memorandum and a letter from Judge Griffin pertaining to this language. Such handouts are attached hereto as (Exhibit C). Mr. Gang stated the bill was virtually identical to the language contained in the Model Rules for Disciplinary Enforcement which have been adopted by the American Bar Association at their 1994 meeting. Discussing Rule 12 of those rules which provides for immunity, the commentary states "commission members and staff must be free from harassment. Immunity assures the independence of the commission and eliminates a major deterrent to service on it." Mr. Gang declared if there is no judicial immunity, he will have difficulty getting attorneys to serve as special prosecutors and investigators to investigate the claims. Honorable Judge Michael Griffin stated after serving on the committee, he was surprised the complaints filed were so similar to those filed by prison inmates. Judge Griffin declared he has been sued for apparent civil right's violations and the cases are always dismissed because he is immune. If that immunity were not present, he would be required to go through meaningless litigation. Guy Shipler, Vice-Chairman on the Commission on Judicial Discipline, introduced himself stating he was available to answer questions. Mr. Carpenter asked how the retroactivity clause would apply. Mr. Gang responded there would be no problem with the constitutionality of that provision and retroactivity is not unusual in these circumstances. There is a constitutionally authorized body performing functions under the constitution so this just provides protection for those persons performing services over a period of time. Mrs. Monaghan asked for the difference between "absolute" immunity and immunity. Judge Griffin stated there are many forms of immunity and S.B. 369 discusses judicial immunity which is the same as absolute immunity. Mr. Gang concurred the terms were synonymous when applied to judges in that case law has interpreted judicial immunity as when the judge is acting in the scope of his duties. Presiding Chairman Sandoval asked who the category of person pertained to in Section 3(4). Mr. Gang stated that language was added by amendment which allowed for the removal of the Attorney General and the inclusion of attorneys and investigators as an independent contractor. Mr. Guy Shipler added the reason this bill is brought forth now even though the Commission on Judicial Discipline has been established for some time, was because of the recent Whitehead litigation. The commission was not very organized and the Whitehead matter forced them to become organized and address concerns not evident before. Mr. Gang concluded there were no pending lawsuits against the commission, its staff, or attorneys and employees at the present time so none of the provisions in S.B. 369 would affect any existing litigation as there is none. ASSEMBLYMAN ANDERSON MOVED TO DO PASS S.B. 369. ASSEMBLYMAN SCHNEIDER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, CARPENTER, BATTEN, STROTH, AND PERKINS WERE NOT PRESENT FOR THE VOTE. ASSEMBLY BILL 674 - Regulates operational practices of shooting ranges. Warren B. Hardy, Vice President, The Furman Group, representing the Desert Sportsman's Rifle & Pistol Club introduced the Secretary of the club, Elmer Miller, stating they support A.B. 674. Mr. Hardy stated A.B. 674 provides protection to shooting ranges if the ranges have conformed to all local requirements regarding noise ordinances. A.B. 674 has been modeled after recent Michigan legislation. Mr. Hardy pointed out in areas such as Clark County where there is substantial growth, the developments are growing around shooting ranges. Shooting ranges provide a vital service to the community by way of training. Elmer Miller, Desert Sportsman's Rifle & Pistol Club, stated the club was established in 1959 and has over 1,000 members. Their club provides junior shooting programs, hunter safety, firearm safety to the public. Mr. Miller stated all shooting ranges within the state of Nevada need A.B. 674 to pass to provide for the adoption of operating practices and provide certain immunities to ranges in case of housing and developments being built within their surrounding areas. Mr. Sandoval asked why the Adjutant general is named as the supervising authority in the bill. Mr. Hardy stated that was not their request but rather the Legislative Counsel Bureau (LCB) assigned the general to act in that capacity. Further, they would not have a problem in directing a different individual in that provision. Mr. Sandoval asked why there was an "assumption of the risk" provision in the bill. Mr. Hardy replied that provision is consistent with what is occurring nationally. Mr. Miller added there is a certain risk involved with firearms and they continually have to remind persons at the ranges to put their eye and ear protection on. Mr. Sandoval commented the doctrine of "assumption of the risk" was superseded in Nevada by comparative negligence so perhaps the LCB could check into this to see if there is a contradiction in the law in this regard. Mr. Goldwater asked if there are currently problems with the noise at shooting ranges. Mr. Hardy stated the concern is because of the rapid growth developing around shooting ranges that have already been established for a long time. There have been incidents elsewhere where developers have sued long-established shooting ranges in compliance with local ordinances forcing their closure. Mr. Schneider recognized Las Vegas would have the propensity for this problem to develop and asked if A.B. 674 would actually help because development would most likely force the shooting ranges to move anyway. Mr. Hardy agreed the market force would require the ranges to move but A.B. 674 would provide protection under the current state statutes and decision to move the range would be left to the local government. Chairman Humke asked how other shooting ranges are regulated. Mr. Hardy answered he was uncertain. Mr. Miller did not know either. Chairman Humke asked if another agency or individual has been considered to act as a supervisor of the ranges in place of the General of the National Guard as is currently set forth in the bill. Mr. Hardy stated he has spoken with the national guard and they have some suggestions. However, research would have to be completed to determine who or what agency could do the regulating. Mr. Carpenter asked if supervision could be handled under the local level by the county sheriff. Mr. Hardy replied the local ordinances are not changed by the legislation. The bill's intent is to provide a uniform protection for shooting ranges in existence prior to the development taking place if local ordinances have been met. This law would bring uniformity throughout the state and that is their intent. Further discussion was held along these lines. Chairman Humke recited case law theories of "moving to the nuisance" as pertains to Section 5. Lieutenant Colonel David Pennington, legal counsel for Nevada National Guard testified in opposition to A.B. 674. Lt. Col. Pennington stated General Clark was unable to be in attendance at the hearing because he was out of town. However, General Clark has expressed great concerns applicable to a military commander being tasked with establishing standards for operational standards or practices for any civilian activity. A.B. 674 would require him to develop and adopt such standards for civilian shooting ranges. General Clark's concerns are set forth in detail in the prepared statement attached hereto as (Exhibit D). Lt. Col. Pennington stated the Nevada National Guard knows very little about shooting ranges. In addition, there are differences between civilian weapons used at a shooting range versus weapons used in the military. In fact, very few of the weapons defined in A.B. 674 are actually used in the military. For example, Section 1 defines shooting ranges and the weapons used therein such as archery wherein the military has not used bows and arrows for quite some time. Other examples identified in the bill is a black powder weapons which the Guard sold to the Navy last year. Lt. Col. Pennington addressed the "sports shooting" category in the bill and acknowledged the Guard does have shooting clubs and promotes shooting competitions; however, from a training perspective the concept of "sports shooting" is foreign to the military. Sports shooting is something done for fun and recreation and although there is nothing wrong with that their practice in the handling of weapons has nothing to do with fun. Military weapon training is geared to the serious business of war not recreational sports shooting. Lastly, Lt. Col. Pennington stressed General Clark's concern for the issue of liability. A.B. 674 does not create the outlined tasks for the Nevada National Guard or the military but rather the Adjutant General, personally. Although he has not discussed this matter with the Attorney General, it is easy to see where liability litigation could be brought under this bill. Lt. Col. Pennington stated if General Clark were required to investigate and rule on compliance issues, that would take away from his primary duties as commander of the Nevada National Guard. General Clark would request the committee object A.B. 674. Captain Greg Schlough, weapons expert for the Nevada National Guard, was also available to answer questions the committee may have. Mr. Anderson announced he has received many messages from the General on this issue and now he understands why. In addition, Mr. Anderson asked what percentage of the funding of the Nevada National Guard is received from the state. Lt. Col. Pennington stated 5% of their funds are from the state and the remainder is federal. Further, federal funds are purely limited to military training. The state budget is so strained they have armories they have to close because they do not have the funds to fix the roof. Their budget would not allow for the hiring of an expert which would be required under A.B. 674. Mr. Anderson acknowledged the flag display in the lobby of the Legislature presently and thanked the Nevada National Guard and specifically the Adjutant General for such a powerful display of American history in celebration of flag day. Chairman Humke concurred. John Patton, a private citizen, testified in opposition to A.B. 674. Mr. Patton stated he understood the concern Mr. Hardy expressed in having existing shooting ranges "grand fathered" because they do serve a public purpose. His only concern with the bill was that local input was necessary and he disagrees with the transfer of that authority to the Adjutant General. John Riggs, Sr., Nevada Gun Owners, stated he was in favor of the intent and purpose surrounding the bill; however, once again the adverse effect has not been fully explored. The bill addresses public and private shooting ranges, not military ranges. Mr. Riggs discussed the ranges currently throughout Nevada which originally were built far out in the community but now developments are closely surrounding these ranges. He believes responsibility should be placed on the developer requiring him to pay for the relocation of the range if it is determined that is what needs to be done. Mr. Riggs stated he agreed with Mr. Patton in that the supervision should remain on a local level. Mr. Carpenter asked if the land for the shooting range in Washoe County was donated by McCullock. Mr. Riggs stated the area was chosen by persons throughout the community and there are homes not too far from where the range is now but if expansion continues as it has been that range may suffer. It is a problem nationally and the intent of the bill is to protect the range that has already been established and complies with the ordinances listed then they cannot be required to move. However, if the developer is required to pay, then the relocation of the range could occur more quickly than the five years set forth in the bill. Ms. Steel asked how many endangered ranges were in the state. Mr. Riggs stated there were none presently but the problem needs to be addressed especially pertaining to the ranges in Washoe and Clark counties. Mr. Anderson stated he was aware of three ranges in Washoe County that may be affected by this bill. Chairman Humke informed the proponents and opponents of the bill he did not see a great deal of appetite for the bill by the committee at this time. However, an amendment could be possible and if the bill is processed, the Adjutant general's responsibilities would be amended out. Chairman Humke announced a subcommittee would not be formed on the bill and suggested Warren Hardy, the proponent of the bill, to work something out in the next few days to 1) find another supervisor and 2) solve the mandate to local government contained in the bill then that could go a long way in solving the problems. Mr. Hardy disclosed the bill came late in the session and it was not their intent to involve the Nevada National Guard or General Clark but that was the language presented to them by LCB. SENATE BILL 366 - Increases number of judges of family court in eighth judicial district. Christina M. Chandler, Family Court Administrator, Eighth Judicial District Court, appeared to request the committee's support of S.B. 366. Ms. Chandler stated the bill requests two additional family court judges for Clark County. Ms. Chandler informed the concept of family courts was not embraced in Nevada until 1985 when Representatives Myrna Williams, Sue Wagner, and Rene Diamond became very active in instituting the concept. Ms. Chandler further detailed the legislative history behind the initiation of the family courts. Ms. Chandler provided a handout to the committee, attached hereto as (Exhibit E) which provided statistical data to support their request for two additional family court judges. To date, there are 11 judicial officers in Clark County to manage 29,299 cases averaging 2,663 per year. She stated their caseload in this area exceeds 8% per annum, referring to the charts on pages 4-7 contained in the handout (Exhibit E) hereto. Ms. Chandler outlined the types of cases the Family Court hears. Mr. Chandler concluded the Rose Commission recently concluded their court workload assessment study involving courts in Nevada. That study produced the following recommendation: "Matters handled by the family division are generally the most complex, emotionally charged and personal cases to be resolved by a court. Given the importance of said decisions to our society, prompt and effective case processing of these matters is essential. Adequate resources must be made available to make sure of the proper functioning of the family division." This study recommended six additional judicial positions be created for the family division in Clark County and two additional judicial positions in Washoe County. Ms. Chandler further detailed recommendations of the Rose Commission in this regard. Ms. Chandler appreciated the committee's support of this request. Ms. Steel asked where the additional judges would be housed. Ms. Chandler stated they just occupied their new building and they have offices for 14 judicial officers and 11 courtrooms. Ms. Steel asked why they were only asking for two new judges when the recommendation from the Rose Commission was for six. Ms. Chandler stated although they could justify the need for six additional judges, the county could only fund two judges. Each judicial officer also entails a bailiff, a law clerk, a secretary, and eight clerks per judge so they are mindful of the significant county impact. Chairman Humke asked what the current salary was of a district court judge. Ms. Chandler stated the entry level salary is $79,000 and upon Chairman Humke's further inquiry stated the $100,251 set forth in the bill is for the remaining six months of the biennium for the two judges and personnel costs. Chairman Humke asked if the state pays the salary of the district judge and the county bears the remaining costs. Ms. Chandler confirmed that was correct. Ms. Steel asked if the positions were elected from the on-set or appointed. Ms. Chandler stated there was some initial discussion regarding appointment but they agreed later to have the positions set for the general election in 1996. Chairman Humke noted no further questions for Ms. Chandler and announced it was his pleasure to assist Ms. Myrna Williams in 1991 with the family court bill. Ben Graham, Clark County District Attorneys Office, stated the county fully supports S.B. 366. ASSEMBLYMAN OHRENSCHALL MOVED TO DO PASS S.B. 366. ASSEMBLYMAN CARPENTER SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BATTEN, MANENDO, AND SCHNEIDER WERE NOT PRESENT. SENATE BILL 468 - Provides for certain post-retirement increases in benefits of surviving spouses of supreme court justices and district court judges. Donald J. Mello, Director Administrative Office of Courts, testified S.B. 468 was prepared at the request of the Committee on Senate Finance and the Committee on Ways and Means. S.B. 468 provides for post-retirement increases to judicial widows who presently receive benefits under the Public Retirement System. Mr. Anderson asked if the judges contribute to the state retirement system. Mr. Mello stated no they do not, the Legislature appropriates the money. Mr. Anderson inquired if S.B. 468 had already cleared Ways and Means. Mr. Mello stated the bill, he believes, has been assigned concurrently to Ways and Means. Ms. Buckley asked how the $2,000 monthly payment compared to what the judge would have received against his pension. Mr. Mello stated in many cases there is quite a difference. For instance, a judge could retire after 22 years at age 60 with 75% pension. So assuming a person was receiving $65,000 per year as a pension they would be falling back to $24,000 per year. Mr. Perkins asked if there was any other group within the Public Employees Retirement System (PERS) that does not contribute to the retirement system. Mr. Mello replied that question has been discussed for many years and the policy set many years ago. That decision was that to cause a deduction to the judge's pay would be unconstitutional. However, Mr. Mello disclosed he does not contribute to PERS himself although there is the presumption he is receiving less pay than if he were contributing personally. That same presumption is assumed by the judges as well. Mr. Mello informed if the Legislature were to require judges to contribute to a retirement fund then they would have to raise the salaries. Mr. Anderson asked when was the last time the Legislature raised the retirement for widows in this area of the law. Mr. Mello responded the last increase was in 1991. Further, Mr. Anderson asked if the percentage of increase was commensurate with the percentage of increase currently going toward other retired employees. Mr. Mello stated yes that was correct adding under PERS a retiree has to wait three years and then receives the lesser of 2% or the cost of living before they receive post-retirement increases. Chairman Humke asked what the vesting period was for a judge or justice in order to obtain a retirement benefit. Mr. Mello stated five years at age 60 and 6% would be the vested credit after five years otherwise it is 12.5% at the age of 60 after ten years, which is similar to PERS. Upon Chairman Humke's further inquiry, Mr. Mello stated the average term served for a justice or district court judge is 18 to 20 years and the average age coming to the bench is at approximately 46 years of age. Chairman Humke asked if any analysis had been conducted with the impending term limit issue. Mr. Mello stated they are looking into that. Mr. Perkins asked if after 22 years the pension would be 75% of the salary. Mr. Mello stated yes that was correct. Mr. Perkins inquired if that was the same as PERS. Mr. Mello replied no a PERS employee has to work 30 years to receive 75%. Seeing no further questions, Chairman Humke closed the hearing on S.B. 468. Mr. Anderson stated he recalled having problems with this bill in 1991 and he probably would not be supporting a motion if made at this time. Further, he acknowledged the bill had to go to Ways and Means so if the Chairman wished to move the bill forward it would be fine. ASSEMBLYMAN GOLDWATER MOVED TO DO PASS S.B. 468. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION FAILED. ASSEMBLYMEN STROTH, BATTEN AND MANENDO WERE NOT PRESENT. ASSEMBLYMEN MONAGHAN, PERKINS, CARPENTER, AND ANDERSON VOTED NO. Chairman Humke announced the co-chairmen would not be accepting any more bills for introduction at this time. ASSEMBLYMAN ANDERSON MOVED TO SUSPEND THE RULES REQUIRING 5-DAY POSTING AND ALLOWING FOR EMERGENCY PROCEDURES. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN MANENDO AND BATTEN WERE NOT PRESENT FOR THE VOTE. There being no further business before the committee, the meeting adjourned at 9:35 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 13, 1995 Page