MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session January 31, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:00 a.m., on Tuesday, January 31, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Maddie Fischer, Primary Secretary Lori M. Story, Committee Secretary OTHERS PRESENT: Harvey Whittemore, Attorney and Lobbyist, Nevada Bankers Association Charles Springer, Supreme Court Justice, State of Nevada Robert Rose, Supreme Court Justice, State of Nevada Robert Erickson, Research Director, Legislative Counsel Bureau Barbara Tally, Citizen The first order of business in the hearing was a call for committee introduction of several bill draft requests (BDRs). The chairman indicated that he would read the BDRs one after another and then, if there was no objection, call for a motion and vote for their introduction. BILL DRAFT REQUEST 3-550: Makes various changes concerning condemnation of real property. This request was made by the Nevada State Department of Transportation. BILL DRAFT REQUEST 10-884: Makes various changes concerning abandoned or unclaimed property. The Department of Business and Industry, Unclaimed Property Division, made this bill draft request. BILL DRAFT REQUEST 16-870: Changes time limit for rehearing if parole denied. The Department of Motor Vehicles and Public Safety's Parole Board asked for this bill draft. BILL DRAFT REQUEST 4-475: Makes changes concerning notice requirements for affidavit of expert. This bill draft was requested by the Clark County District Attorney's Office. BILL DRAFT REQUEST 4-1074: Makes changes concerning fees and expenses of witnesses under subpena. The Administrative Office of the court made this request. BILL DRAFT REQUEST 7-935: Makes various changes concerning investment adviser representatives. This bill draft request comes from the secretary of state. The chairman called for a motion for committee introduction of the agency BDRs. SENATOR McGINNESS MOVED THAT THE BDRs BE INTRODUCED. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) ***** The next order of business, stated Senator James would be a brief explanation by Harvey Whittemore, representing the Nevada Bankers Association, of a requested bill draft. The request, according to Mr. Whittemore, would be a provision to "change the methods and processes by which discovery takes place with respect to requests having to do with the Community Reinvestment Act." He described the provision as a "safe harbor provision" which would bring Nevada in line with other western states. He asked the committee to authorize the drafting of such a bill. The chairman called for a motion. SENATOR PORTER MOVED THAT THE COMMITTEE AUTHORIZE THE DRAFTING OF A BILL CONTAINING THE PROVISIONS AS REQUESTED. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) ***** The chairman took a moment to review the tentative agendas for the 2-week adjournment in Las Vegas. He outlined various subjects and bills to be addressed when the committee meets in southern Nevada, including several joint hearings with the Assembly Committee on Judiciary. He noted the committees had agreed to initially divide responsibility for the various issues before the legislature: the Senate will deal with habitual offender laws, truth in sentencing, and reforms to the prison system; the Assembly will handle alternative sentencing programs, treatment and diversion programs, and reforms to the juvenile justice system. He asked committee members to bring forward any bills that may apply to the topics he mentioned so that they can be incorporated into any proposed omnibus legislation that may result. SENATE JOINT RESOLUTION (S.J.R.) 25 OF THE 67TH SESSION: Proposes to amend Nevada constitution to create intermediate appellate court. The first matter before the committee is S.J.R. 25 of the 67th Session, dealing with the formation of an intermediate appellate court, noted the chairman. He called the first witness, Nevada Supreme Court Justice, Charles Springer. Justice Springer addressed the committee, stating that his attendance was primarily to express his opposition to increasing the number of justices on the Supreme Court from five to seven. He admitted that the state had reached "a critical stage now, ... more cases coming in than are going out," He expressed his view that increasing the number of justices was not a good solution, as well as his approval of the memorandum given the committee by Chief Justice Thomas L. Steffen (Exhibit C. Original on file in the Research Library.) The justice stated he felt that the contents of the memo expressed the view of the majority of the members of the court and the "experts" that the highest court in the state should not sit in panels. He said the, while the memo said the court could expect a "marginal increase in its output" as a result of increasing the number of justices, he, personally, had serious doubts about it. He opined that breaking the court into panels would be disadvantageous, and that such a division could result in political manipulation by the chief justice. While noting that breaking the court into panels might allow more oral arguments to be made before the court, he did not know whether such an arrangement would, in fact, increase productivity. Justice Springer next made a suggestion to the committee based upon his conversations with the chief judge of the court of appeals in Washington. He told of the Washington system where a commissioner is appointed to hear "motions on the merits," which are motions to dismiss raised either by the parties to the action or by the staff of the court. This process, the justice explained, eliminates about one-third of their caseload in this manner. He offered the committee an article printed in the Puget Sound Law Review, Fall, 1991, titled An Empirical Examination of Motions on the Merits (Exhibit D. Original is on file in the Research Library.) He summarized the article's main point as being that one-fifth of cases are disposed of through Motions on the Merits. He agreed that at least one-fifth of the cases before the Nevada Supreme Court could fall into that category. While saying it was not his intent to sell the commissioner's idea, he expressed his view that it would be less expensive and "at least as efficient, in so far as the marginal advantage that Chief Justice Steffan mentions." Justice Springer stated that Chief Judge Webster, of the Appellate Court in Washington, would be willing to come and address the committee on the subject. The justice stepped down from the witness table. Robert Rose, Supreme Court Justice, State of Nevada, took the floor and the chairman reminded him that the court had previously provided the committee with all pertinent statistics relating to the intermediate court, but asked the justice to please restate some of them and to explain any changes or progress since the last legislative session. Justice Rose spoke as representative for the entire supreme court, stating that there was unanimous support from that body for an intermediate appellate court. In 1975, the court came to the legislature and said the situation was "urgent," the justice told the committee, and in 1990 they came and said it was "desperate or critical." At this point, he noted, the court's caseload is increasing at about 10 percent per year. He explained the justices were trying to handle at least twice the load that experts would recommend. At this point, that has even increased to three times the recommended load, said the justice, adding that in reality, the court could only effectively handle 1.000 to 1100 cases per year. The result is a falling behind in the caseload and a backlog which grows at a rate of about 250 cases per year, he calculated. Justice Rose noted that "caseload tracks population very closely, but impacts the courts 4 or 5 years later." The result, he said, was that in the next 4 or 5 years, the court's caseload would balloon in proportion to the growth that Las Vegas and Reno have recently experienced. This "spells long delays, ... less time per case, ... and less real justice for the people of the state of Nevada" he emphasized, adding the fact that in 1968 the supreme court was increased from three justices to five and since that time there has been added 28 new district judges and not one appellate judge. Justice Rose used neighboring states as examples: Idaho has an appellate court of three; Utah, with a caseload similar to Nevada's, has a seven member intermediate appellate court; Arizona, a slightly larger court; and California, has many appellate courts. He admitted that at the previous legislative session, the court failed to present a strong case and it was their fault that the measure did not pass. He stated their intent this session, to make the case, because they need an intermediate appellate court. In addition, he reiterated, three of the justices felt the situation was so critical that additional justices needed to be added right away. The justice stated that he did not see the two measures as being inconsistent, noting that if additional justices were added immediately, the legislature could write into the law a sunset clause which would terminate their position either by natural attrition, when a justice retires (providing there is an intermediate appellate court formed) or even immediately upon the formation of the appellate court. This could be effected by moving the least senior justices directly into seats on the appellate court, Justice Rose suggested. Senator Porter asked the justice whether the states he provided for comparison had a similar caseload per capita to Nevada. The justice responded that he did not know for certain, because he had never made the study, but the court had never felt the caseload in Nevada was "out of line" with their neighboring states. However, he added, when counting cases per judge, Nevada is at the top of the list. Senator Porter asked if there were estimates provided about the cost to the state for the additional justices. The justice replied that estimates he knew of ranged from $500,000 to $750,000, and the governor's budget allowed "a little over a million." He stated this figure includes four staff positions and four positions in the clerk's office, along with the justices' personal staff. Justice Rose admitted there were possible problems with adding the justices: 1) inconsistent decisions from the two panels, which would require a resolution by all seven justices together; and 2) greater administration from two panels. These problems could be offset by the increase in productivity that would result, he added. One other point, the justice noted, would be the need to rotate the panels to avoid judge shopping (i.e., trying to be heard in front of the panel that is reputedly more favorable toward a particular view.) In sum, Justice Rose stated, that while the preferable way to deal with the increased case load was to create an intermediate appellate court, he felt that it would be beneficial to add two justices in the interim. He pointed out that the creation of two panels of justices would provide the south with full time access to the appeals procedure. He also stated, that the Nevada District Attorneys Association supports the concept because of the feeling of greater accessibility to the high court. Senator James asked if there was a bill draft addressing the increased number of justices. Justice Rose responded that Assemblyman Price told the justice he had submitted a bill draft. Senator Adler inquired whether the bill draft actually addressed putting on two additional justices as a transition to the intermediate court of appeals. The justice answered that it was his understanding the bill draft simply added two justices. Senator Adler then asked if the committee requested a bill draft for transitional justices, whether the bill would be in addition to the one Assemblyman Price proposed. The justice replied that it would be an additional bill. Senator James noted that such a bill, since it did not involve a constitutional amendment, would rightfully go to the finance committee. Based on that, he stated he would not want to move for such a bill draft. The justice noted that the cost of adding two justices to the supreme court was already included in the Governor's proposed budget. This information prompted the chairman to state that he would discuss the item with Senator Raggio to ascertain what actions have been taken and what actions need to be taken to provide the proper legislation to support the court's request. Senator Porter requested the floor and asked Justice Rose what the cost of the appellate court was projected to be. The Legislative Counsel Bureau, in their summary of 1992, estimated the cost to be $3.1million to establish the new court, the witness stated, mentioning that part of the cost would be one-time expenses and some ongoing. Further, he continued, the members of the supreme court felt that figure was high and that $2 million was a more realistic figure. Senator Porter next asked the justice whether the court have been able to resolve its internal conflict, which is a subject of public concern and might impact the response of the voters. In response, Justice Rose admitted there has been problems but that he hoped to "move through and beyond them." He continued by noting that adding two justices to the supreme court would, in his opinion, dilute some of the conflict because each justice would have one-seventh of a vote rather than one-fifth of a vote. Senator Adler addressed the justice explaining, in his personal experience, he had noticed a real difference between appearing before a panel of the Ninth District Court of Appeals and appearing before the full Nevada State Supreme Court. This difference was apparent in that it was obvious the justices on a panel, whose work load was smaller, had an opportunity to thoroughly read the briefs and materials pertaining to a case. In the case of the supreme court, he said, it was clear that not all the justices had been able to completely familiarize themselves with the case. The justice concurred, noting that currently one justice was assigned primary responsibility for each case and the rest of the justices simply were not able to be as familiar, due to their heavy caseload. SENATE CONCURRENT RESOLUTION (S.C.R.)10: Urges Supreme Court of Nevada to examine judicial accountability. Before concluding his remarks, Justice Rose asked the chairman for permission to speak to S.C.R. 10. Permission granted, the justice stated that he was personally in favor of the resolution, "it's a good bill, I think we should strive for greater accountability and openness in the Nevada Supreme Court and in the court system." He pointed out that over the last 2 years the supreme court has opened lawyer discipline to the public, has made its administrative docket proceedings public, and "is considering greater openness to the public with regard to the deliberations of the Judicial Discipline Commission." He reminded the committee of the results of the Urban Court Workload Assessment Commission's report which made two proposals: 1) a judicial evaluation commission, and 2) better court statistics. Senator James noted that testimony of the previous day (January 30, 1995), presented by the justice, was on point with this issue. He also told the justice of an upcoming subcommittee hearing (February 2, 1995) to discuss the subject and invited him to attend. Senator James called for further testimony on S.J.R. 25. A member of the audience stated she would like to testify against it but would prefer to do so when she addressed to committee during testimony on S.C.R.10. The chair allowed the request. The hearing on S.J.R. 25 was temporarily closed. The hearing on S.C.R. 10 was then opened and the chairman called Bob Erickson, Research Director, Legislative Counsel Bureau, to provide information to the committee. He stated he was appearing on behalf of the Commission to Review Compensation, which was empaneled by the 1993 Legislature to review compensation of elected officials, and to make recommendations to the Legislature. A copy of their report (Exhibit E. Original is on file in the Research Library.) was given to the committee members. Mr. Erickson read a list of the commission members: Dr. Albert John, Las Vegas, Chairman Bertha Mullins, Reno, Vice Chairman Virgil Getto, Fallon Ernie Hall, Elko Paul May, Las Vegas Jim Miller, Reno John O'Riley, Las Vegas Anna Peterson, Las Vegas Barbara Robinson, Las Vegas Mr. Erickson explained that his office was involved because the Legislature provided for staff support from the Legislative Counsel Bureau. The commission developed three recommendations, reported Mr. Erickson, currently taking the form of two bills and one resolution. SENATE BILL (S.B.) 16: Increases compensation of supreme court justices and district judges. SENATE BILL 84: Increases compensation of various public officers. Of these two bills, S.B. 16 is before the senate finance committee, and S.B. 84 is before the Senate Committee on Government Affairs noted Mr. Erickson. The resolution before this committee was the result of discussion at three out of four public hearings conducted by the commission, he stated. In part, the witness explained, the commission brought forward the discussion because it wanted to be able to clearly justify any recommendations to increase salaries for judges and justices. "Also discussed by the commission at its June 1, meeting," added Mr. Erickson, "was the Friday schedules of the district courts, a desire that district court judges put in 40 hour work weeks, judicial performance evaluation, courtroom demeanor, work ethic, and knowledge of the law." At the August hearing of the commission, District Judge Patty Becker, as a representative of the district courts, was asked whether the Legislature could effect a performance based pay scale for judges, Mr. Erickson reported. As an aside he noted the it was the opinion of the legal counsel to the commission that such a move was not constitutional. He offered the committee examples, however, where some form of performance evaluation had been used in some states. Mr. Erickson continued his remarks telling of the commissions resolution to make two recommendations, one directly to the supreme court, urging it to consider accountability and to "install mechanisms to insure accountability," and secondly, to the Legislature, asking that they also urge the supreme court to "enhance the accountability relative to work load and administrative aspects of the judicial system." This concluded Mr. Erickson's statement and there were no questions. The next witness was Barbara Tally, a resident of Henderson, Nevada, who spoke to the committee regarding S.J.R. 25. As a member of the public, she stated, she felt an appellate court would simply be another avenue for abuses. Ms. Tally said," until you have accountability in the judicial system a court of intermediate appeals will allow the abuse against the public to continue." She added that she favored increasing the supreme court because it is smaller and easier to monitor than an appellate court would be. Ms. Tally then read a prepared statement to the committee addressing S.C.R. 10 (Exhibit F). Ms. Tally noted that Justice Rose had shown some interest in her situation and he had encouraged her to speak to the committee. Senator James thanked Ms. Tally for her testimony. Senator James closed the hearing on S.C.R.10 when there was no further testimony. At this point the chairman called for a motion to do pass S.C.R. 10. SENATOR TITUS MOVED TO DO PASS S.C.R. 10. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** The chairman discussed with the committee a memo from Judy Hillbury, a witness before the committee on a victims rights bill. He stated that the substance of her memo asked for a statutory provision to set out the procedure and time frame within which a victim would receive notification of a parole hearing. He called for a motion to request a bill. Senator Adler told the committee of a constituent of his who had had similar concerns with receiving notice of a parole hearing. He said that she received no notice of such a hearing and felt she should have. Senator Lee asked the chairman if it would not be better to require such automatic notice in cases of violent crime, but not necessarily in cases of property loss. Senator Adler responded in some instances there were huge losses sustained in stock fraud cases where the victim might want notification. The chairman mediated stating that the request would be for a broad wording and the technicalities could be worked out during the hearings. SENATOR ADLER MOVED TO MAKE A REQUEST FOR SUCH A BILL DRAFT. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** There was no further business before the committee. And the chairman called an adjournment at 10:05 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary January 31, 1995 Page