MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 9, 1995 The Senate Committee on Judiciary was called to order by Vice chairman Jon C. Porter, at 8:00 a.m., on Friday, June 9, 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 GUEST LEGISLATORS PRESENT: Assemblywoman Vivian L. Freeman STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Terry G. Cray, Administrative Assistant, Second Judicial District Court Donald Winne, Deputy Attorney General, Human Resources Division, Office of the Attorney General John Sarb, Administrator, Division of Child and Family Services, Department of Human Resources May Shelton, Director, Washoe County Social Services Lucille Lusk, Lobbyist, Nevada Concerned Citizens Bobbie Gang, Lobbyist, Nevada Women's Lobby and National Association of Social Workers, Nevada Chapter Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association Cliff Young, Justice, Nevada Supreme Court Noel Waters, District Attorney, Carson City Bob Rose, Justice, Nevada Supreme Court Margo Piscevich, President, Nevada State Bar Association Belinda Quilicy, District Attorney, Pershing County ASSEMBLY BILL 177: Revises provisions governing best interest of child in termination of parental rights. The hearing opened with a subcommittee consisting of Vice Chairman Porter, and Senators Lee and McGinness. The vice chair opened the hearing on Assembly Bill (A.B.) 177, and thanked the visiting Assemblywoman for her attendance. Assemblywoman Vivian L. Freeman addressed the committee. Mrs. Freeman told the committee they were looking at the second reprint of A.B. 177, which was introduced early in the session. She reminded the committee they have already considered other bills regarding the best interest of the child. This bill allows the judge to consider the best interests of the child when awarding custody or assigning foster care. In September of 1994, Mrs. Freeman told, there was held the first of several meetings to discuss legislation that would be important to children, and she decided this issue was an important one. The bill has been supported by the family court judges, by parents, and by all involved in the issue, she reported. There have been two amendments to the bill, Mrs. Freeman explained, both times to "clean it up." The witness told the committee that there has been no opposition to the bill. She then introduced the next witness, Terry G. Cray, Administrative Assistant, Second Judicial District Court, who has worked with the assemblywoman on the bill. After the assemblywoman spoke Senator Adler arrived and a quorum was declared. Ms. Cray addressed the committee in support of the bill. She provided a written copy of her statement which is attached as Exhibit C. At the completion of Ms.Cray's testimony Senator Porter asked the witness how this legislation will help the children. Ms. Cray told the senator she has personal experience with the type of situation the bill is drafted to address. Ms. Cray explained she and her husband had been the third foster parents for a little girl who entered the system when she was 2 « years old. After 3 years, and three hearings for termination of parental rights of the biological mother, the deed was finally done, and the little girl was able to be adopted into the Cray household, the witness explained. Ms. Cray told of the times her daughter would come home asking when she would be able to be a Cray. There had been attempts at reunification with the little girl's mother, but these attempts failed every time. These children need permanency in their lives, they need to know where they belong, she emphasized. Senator Adler stated he has constituents in his district with a similar problem involving twins. The twins have been with the foster parents since they were 6 months old and they are now 4 years old. The situation just continues in a state of uncertainty and question. Ms. Cray asserted the law would put parents on notice that they have only a certain amount of time to get their lives in order and regain custody of their children, or they will lose them for good. Ms. Cray stepped down. The next witness was Donald Winne, Deputy Attorney General, Human Resources Division, Office of the Attorney General. Mr. Winne asked John Sarb, Administrator, Division of Child and Family Services, Department of Human Resources, to join him at the witness table. Mr. Winne supported Ms. Cray's assertion that the problem addressed by the bill is an ongoing one. He told the committee one of his duties is to bring actions for the termination of parental rights. He stated, due to a number of cases decided by the Nevada Supreme Court, it is necessary to bring an absolutely airtight case to district court, or the chances of winning are limited. The attorney general's office and the Division of Child and Family Services view the process as requiring a more thorough and definitive case before bringing termination actions, he explained, which is a higher standard than expected from a non-state agency. A.B. 177 is a tool which will help the agencies, on a district court level, to be able to bring these cases more quickly, with a greater level of assurance there will be a victory for the child. Having a clear-cut time line for the parents to meet is also an added tool, Mr. Winne stated. This deadline gives the state assurance their actions will not go for naught, the witness told the committee. Mr. Winne testified it is always easy to tell when a review hearing is coming up in a particular case, because that is when the parent will make a token effort to contact the child. This is an attempt to give the district court the impression the parent is interested in maintaining parental rights. The presumptions in the bill make it no longer adequate to make these intermittent attempts at parental contact, he asserted. He asked Senator Adler to contact him after the hearing regarding the twins. Senator Adler observed this was one of the cases where the parents show up at review time, or on a monthly basis. Unfortunately, the situation is still going on, with the parents unable or unwilling to accept and perform the responsibilities of parenting. Mr. Winne told the committee that now many of the cases are heard by a juvenile master, rather than a judge. These masters, he explained, have some very strong hesitation about recommending termination of parental rights. He told of one case where he filed an action to terminate parental rights without the master's recommendation and the district court ask why the action had not been brought sooner. The juvenile master never made the recommendation, he explained, but after working with the child's social worker the action was filed and won, even after an attempted appeal. Senator Adler asked if the bill would apply to situations where the parents had stipulated to a guardianship. Mr. Winne told the senator the bill refers directly to an out-of-home placement pursuant to chapter 432B of the Nevada Revised Statutes (NRS). This would be a court placement through social services, the senator confirmed. Mr. Winne agreed. The senator noted there are situations where the parents cannot care for the child, but they make arrangements for the child's care with no court intervention. Mr. Sarb stated he and his office support the bill. He told the committee there are approximately 800 children in the foster care system who have been there longer than 3 years. He pointed out there are some of that number who would be outside the boundaries of this legislation, but many of them would be covered. He testified the state is not doing a good job by these children; "the state makes a lousy parent." The standard established to determine that a child should be taken into foster care is a different standard from that required to terminate parental rights, Mr. Sarb explained. If, while the child is in the custody of the state, the parent does nothing despite the best efforts of the state to encourage their involvement, there still is almost no opportunity to terminate the parental rights, he said. The option available is to return the child to the home to allow the suspected abuse to reoccur; then the parental rights could be terminated. This is not an acceptable option, he stressed. Mr. Sarb emphasized that foster care for these children generally occurs during the young, formative years of their lives. These children need and deserve a permanent home, he stated. Senator McGinness asked Mr. Sarb what type of parents lose their children to foster care; naming drug and alcohol abuse as a possible cause. Mr. Sarb concurred this is a frequent cause of the child's removal from the home. Frequently, the child is born drug or alcohol affected, he told, and is put in the state's custody. Generally, the parent will make some effort to deal with their drug or alcohol addiction, but they fail repeatedly. Meanwhile, the child remains in the foster care program, he said. Mr. Winne addressed Senator Washington, telling him that A.B. 177 is the bill he had referred to during a previous hearing, which is designed to speed up the adoption process. The next witness, May Shelton, Director, Washoe County Social Services, told the committee her agency is the one designated to provide child protective services. If a child needs to be removed from their home for longer than 90 days, the case is transferred to the state Division of Child and Family Services, she reported. This brings the two departments close together in a working relationship. Ms. Shelton reported that social workers always develop case plans and recommendations to the court with the goal of achieving what is best for the child. The court, the witness explained, usually will accept the recommendations of the social worker, but sometimes they do not. If they do not, it is usually because of the courts interpretation of the law, which requires them to consider the rights of the parents. Washoe County Social Services supports A.B. 177, Ms. Shelton testifies, because it "clearly articulates that the State of Nevada puts the rights of children before the rights of parents." This will allow the child to live the rest of their lives without feelings of impermanency and questions about their future. Lucille Lusk, Lobbyist, Nevada Concerned Citizens, came to the witness table in support of the bill. Ms. Lusk stated the bill strikes a proper balance between the needs of the child and the family. Nevada Concerned Citizens has worked with prospective adoptive parents who have tried to provide a stable home for a child only to have the child "yanked out of their care" for a week or two here and there so the parents can visit with the child. This situation continues over long periods of time, and is damaging to the child, Ms. Lusk maintained. She asked the committee to pass the bill. Bobbie Gang, Lobbyist, Nevada Women's Lobby and National Association of Social Workers, Nevada Chapter, also spoke in support of A.B. 177. She represented that both the organizations strongly support the bill, in its revised form, as well as the concept behind the bill. She urged the committee to pass the bill. Senator Washington told Ms. Gang this is one issue they can agree on. There was no further testimony and the hearing on A.B. 177 was closed. Senator Porter opened the hearing on the next bill. SENATE BILL 549: Revises provisions governing plea bargains and appeals in certain criminal actions. Senator Porter explained this bill was crafted by himself and Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association. It is an attempt to speed up the judicial process as well as eliminate some of the excuses or "black holes" that appear to facilitate convicted offenders' attempts to avoid justice. Sometimes, plea bargains are used as one of these excuses, he explained. He asked Mr. Graham to come forward and tell the committee about the bill. Mr. Graham explained in criminal prosecution, the state carries the burden of proof in all instances; establishing the guilt of the defendant beyond a reasonable doubt. At the inception of the criminal justice system there were dozens of crimes that could expose a convict to the death penalty. Because of this the burden has been very heavy on the state, Mr. Graham told. Additionally, there exists the Rule of Lenity, which says if a statute can be interpreted more than one way, it is always interpreted in the favor of the defendant. As a result, when laws are made with the intent to accomplish a particular purpose, there is always some minor possibility that it could be interpreted differently than intended, he stated. Mr. Graham told this bill is a continuation of what is already being done in some counties in the state, and what Justice Young of the Supreme Court intended to outline in the procedural rules of the state's courts. It requires plea negotiations to be written out, in a form substantially the same as the one provided in the bill. The written plea bargain agreement, Mr. Graham explained, will set forth what was agreed upon by the defense counsel, the state and the defendant. It would require the signature of the defendant, the defense counsel and the prosecutor. The first portion of the bill provides an example of a rather substantial plea bargain agreement, the witness told. On page 3 of the bill, line 6, "subsection 3" should read "subsection 2," Mr. Graham told the committee. Additionally, the bill will provide a certificate of the defense attorney which will certify their involvement in the matter. Under the current plea bargaining system, many of the defendants are bringing various appellate actions because they claim misrepresentation or misunderstandings of the agreement. This puts the prosecutor's office in the position of having to defend what the defense counsel did in the process of negotiating this agreement, Mr. Graham testified. The second portion of the bill deals with appeals following guilty pleas, the witness explained, stating if a defendant pleads guilty, they do not have the right of appeal directly to the supreme court, unless there is a constitutional basis for the appeal. Thus, the defendant must bring the issue in a post-conviction relief petition, he stated. One other slight change proposed by the bill is a provision which includes in the written plea negotiation document a canvassing of the defendants' rights, as outlined on the document. If the defendant has read and signed the agreement, it is assumed by the parties and the court that he has been fully informed of his rights. Finally, Mr. Graham represented the bill has been brought to and discussed with all five members of the supreme court and with members of the defense bar, and there has been no concern raised by these parties. The fiscal note indicates a positive impact, because the bill will eliminate some of the appeal processes as well as the need to appoint attorneys in some cases. Cliff Young, Justice, Nevada Supreme Court, stated he does not appear before the committee on behalf of the court, but rather on his own accord. He did opine that his colleagues would "substantially agree with the measure as presented." He commended the bill's sponsors for their interest in the issue. Justice Young reported that over half of the cases brought to the supreme court are of a criminal nature. Over 75 percent of that criminal caseload "have no arguable merit," he asserted. Unfortunately, it is necessary to go through the entire process, which costs thousands of dollars, and uses up hundreds of hours of manpower. This bill will clean up the procedures and make the system operate more smoothly. Justice Young concurred with the representation that the bill will save money. He talked of requests for attorneys' fees in cases brought to appeal. It is very difficult for the court to assign these fees, he said. He noted the bill does address, to some extent, the concern that the defense attorney has thoroughly informed his client of the possible repercussions of his actions, whether he accepts the plea agreement or goes to trial. There has been a concern, Justice Young reported, that "many a poor defendant has been seen by his attorney in the hallway outside the court," with the attorney representing the situation to the client, in a less than thorough fashion. Senator Adler asked Mr. Graham if he thought this bill would more thoroughly address the issue than was done earlier with similar legislation. Mr. Graham stated it is his hope the bill will provide the "neon" light necessary to thoroughly illuminate the subject. The bill does retain some discretion as to the form of the written agreement, to facilitate the various "fact patterns" that arise in criminal law, he said. Noel Waters, District Attorney, Carson City, came to speak in support of the bill. This bill has been well explained by the previous speakers, he said, and he opined it is a good measure to cut down on frivolous appeals brought to the supreme court without eliminating the defendant's ability to contest constitutional issues, or to seek post-conviction relief. He stepped down. The chairman closed the hearing on S.B. 549. SENATE JOINT RESOLUTION 24: Proposes to amend Nevada constitution to require establishment of commission on judicial performance. Bob Rose, Justice, Nevada Supreme Court, came to explain Senate Joint Resolution (S.J.R.) 24 to the committee. He brought with him Margo Piscevich, President, Nevada State Bar Association. Justice Rose explained Ms. Piscevich served on the judicial assessment commission (Rose Commission) which considered the proposal that is now before the committee. The Rose Commission recommends the measure, he stated. The resolution proposes an amendment to the state constitution, Justice Rose told, to establish the Nevada Judicial Performance Evaluation Commission (evaluation commission). The measure would have two impacts, if passed, including informing the public about the effectiveness and work load of the judges in the state; and substantially increasing judicial accountability. The justice pointed out there are 18 states that currently evaluate the performance and justices on their supreme courts. He opined this would be a positive step. The amendment to the constitution would simply approve the establishment of the evaluation commission and directs the Legislature to set the laws that will govern it. Justice Rose pointed out that the Rose Commission had been more detailed in their recommendations than those set out in the bill. He speculated the Legislature may wish to adopt the recommendations made by the Rose Commission, or there may be a desire to make changes to some of them. The witness explained how the performance commission had been visualized. He said the plan called for 10 members: including four appointed by the Legislature; two appointed by the Governor; two appointed by the state bar association; and two by the chief justice of the Nevada Supreme Court. This commission would be responsible for evaluating judges and justices prior to election; informing the judge or justice as to the findings of the evaluation 30 days prior to the filing deadline for election; and then releasing the information to the public during the campaign and election process. The supreme court unanimously supports the proposal, Justice Rose exclaimed, adding that "unanimity on the supreme court is not something to be taken lightly." The court does make one recommendation that is different from the Rose Commission's: they recommended the evaluation commission be made up primarily of nonlawyers; the court suggests there be no limitation as to the appointments made by the Governor or the Legislature. Senator James commented it would seem that nonlawyers would be equally able to participate in the evaluation process as lawyers, even if in varying degrees. He speculated the members of the evaluation commission would have to examine the court docket, as well as attend and observe court proceedings. He opined the nonlawyer could evaluate the demeanor of a trial judge more easily, perhaps, than they could the supreme court justices. This is because there are more complex issues at hand at the appellate level, he observed. He agreed there should be some attorneys on the board, but noted the makeup really was not addressed by the resolution. Justice Rose agreed with the senator adding the Legislature would consider this question, as did the Rose Commission, when the laws are formulated. He noted the Rose Commission recommended that only district judges and attorneys should have the power to evaluate the supreme court. On the district court level the evaluation commission would probably ask police and probation officers, attorneys, other judges, and court personnel for their input about the judges' performance. Senator Adler asked if two district court judges were running for the supreme court, would they both be evaluated. He referred to the section of the resolution that says, "each...District Judge who is a candidate of judicial office." Justice Rose pondered a moment and then answered they would both be evaluated, even if they were vying for a higher office. Senator Porter observed that attorneys who must appear before the judges they are asked to evaluate might hesitate to be exactly honest in their appraisals and because of this the "civilian" evaluator might be more forthcoming in their criticisms. The justice stated the Rose Commission had agreed with the senator, but the bar association representative would prefer that at least half the evaluators be attorneys. He replied the questionnaires would be answered anonymously, but newspaper polls have shown that many attorneys are not reluctant to voice their opinions and concerns publicly. These are all details that will have to be ironed out, the justice noted. At this point, however, what is being asked is: Is this a good idea and something wanted in Nevada?, the witness noted. Senator Porter voiced his support for the idea. Ms. Piscevich told the committee she was the appointee from the state bar of Nevada to the "Rose Commission." She said she served on a subcommission dealing specifically with the issue of a judicial evaluation commission. The witness explained the concept of judicial evaluation goes hand-in-hand with the merit selection system for judges. The proposed evaluation commission would do the evaluations in conjunction with upcoming elections, she stated. She added she is unsure if the process has been tried in this form by any other states. In answer to the question as to why a judicial evaluation commission is necessary, Ms. Piscevich opined the concept brings a very good tool for providing information to the public. Ms. Piscevich suggested an amendment to the resolution, noting it is her opinion that every judge should be evaluated, not just those up for reelection. There is currently no objective standard applied to the performance of the judges or judicial system, the witness continued. There is no data collection or other statistical information gathering to determine who is doing a good job and who is not, Ms. Piscevich explained. Also, she observed, there is no public awareness as to caseload distribution among the state's district courts. She reported, for example, the number of civil filings in the state's courts are down, while the number of cases involving domestic violence has increased. There should be a performance demand put on the judges, she explained, and the way to accomplish this effectively is a unified, statewide data collection system with a weighted caseload analysis. Without this there is no level playing field available on which to evaluate the various judges in the different jurisdictions. With this data collection system, the makeup of the commission is not so crucial, Ms. Piscevich stated, but it will make available some objective criteria and standards the commission can use, no matter what the commission's makeup. She did opine that at least 50 percent of the commission should be legally trained. She offered an illustration of her reasoning in this regard. Ms. Piscevich stated the final thing to think about, once the data collection system is committed to, is to decide the basis for the judicial evaluation. She suggested such things as legal analysis, fair and consistent sentencing, integrity, fairness, and behavior that is free from bias are examples of areas to be evaluated. The bottom line, the witness stated, would be the recommendation to retain or not retain the judge. Ms. Piscevich reported that exit polls at elections reveal that as many as 40 to 50 percent of people who have voted actually have no knowledge about the judiciary, yet they voted in those elections. Anything that can be done to educate the electorate is a valuable tool to be utilized, she stated. Plus, making the judges more accountable would also be helpful to the effectiveness of the judiciary, the witness asserted. She also mentioned the possibility of having the judges account for their time, as is the practice in New Jersey. Senator James pointed out the resolution is worded to say it is only the justice or judge who is evaluated. He wondered if these individuals are in a contested election, does the challenger get an evaluation. Ms. Piscevich reiterated her opinion that there simply be a judicial performance evaluation on all judges, preferably before an election. Persons running against an incumbent or already sitting judge would not experience any change from the situation that exists today, she stated. Ms. Piscevich emphasized the importance of knowing whether a judge is a good one or not, because training a judge is very expensive. She told the committee it takes a judge approximately 6 years to get to a point where they are experienced. They must attend judicial college and many other kinds of training courses, she stated. Because of this investment, if they are doing a decent job, they should be recommended for retention. The chairman expressed his view that not evaluating the challenger would provide an imbalance in the system. The witness observed there generally is no such evaluation made now, and there never has been. They have no record to judge, she stated. The senator noted this judicial evaluation is "something official." Senator James remarked the resolution is a companion to the recommendation that a Nevada Plan be developed for judicial selection. As an aside he took a moment to apologize to Justice Rose for not being able to bring more of the commission's recommendations to the Legislature in bill form. He stated he and Senator Titus had requested they be drafted very early in the process, but they have yet to be brought to the committee. Returning to the subject at hand, the senator stated the resolution goes with the other recommendations made by the Rose Commission. He wondered how the evaluation would be used. Ms. Piscevich explained the situation, as it had been visualized by the Rose Commission, would be an evaluation done every 2 years (or every 3 years). The chairman interjected the resolution calls for evaluations of candidates for judicial office. Ms. Piscevich emphasized the fact that she had not seen the bill until just prior to the hearing. The Rose Commission recommendation would be for all judges, not just candidates, she reported. This is an important point, she stated, because all judges can benefit from evaluation. Senator Adler asked if wording to the effect "all judges shall be evaluated by their fifth year of office..." would suffice. The witness suggested "the Legislature shall establish by law a commission on judicial performance to evaluate the judicial performance of each justice of the supreme court and district court..." without indicating any specific time frame. Washoe County did their first judicial evaluation last year, the witness reported, and Clark County has been doing them for some time. The point is that the longer the evaluations continue, the better it gets, the witness stressed. Additionally, the judges who are good judges take the evaluation seriously and generally improve; the judges that are the bad judges remain that way, she stated. She restated once again her opinion that all judges should be evaluated, and the public should have access to those evaluations. Senator James asked what would be the good of evaluating judges who were not up for reelection. It seems only pertinent, he stated, when they face the electorate. Ms. Piscevich offered the evaluation would also provide a time analysis, explaining how the judges spend their time. The senator stated his view that an elected official "is entitled to serve [their] term, do what [they] think is right." Because the voters are aware of the length of term, when the time comes to reelect then an evaluation would be useful. Only because judges are involved in an arcane area and are more insulated from public scrutiny than most elected posts would an evaluation be acceptable, he opined. He voiced opposition to gratuitously deciding to evaluate "people" after some arbitrary time period. It stated it is appropriate at election time, but otherwise, it seems like an "officially sanctioned second- guessing." Ms. Piscevich agreed the senator has a valid point, but noted, currently, judges are not accountable to anyone. The chairman asked if they are accountable to the voters. She agreed they are, but they are not accountable to the system. The current system allows one judge to do nothing and another to work 12-hour days, and no one knows of this. The chairman stated they would be accountable when the report is released prior to reelection. Ms. Piscevich opined the evaluation would give the judge an opportunity to improve his or her performance. This provides more than an election tool, she stated: a way to improve the system overall. Senator Adler interjected his support for the evaluation every 2 years, because it would point out areas of deficiency. Then, in another 2 years the person would be reevaluated, and improvement could be reported. This, he opined, would be a real benefit to the judge and the public. There are judges who appear to the public to be "s.o.b.s" but they really are good judges, while others appear to be good judges, in their public demeanor, but in reality are no good behind the bench, he stated. Ms. Piscevich asked for an amendment to include an evaluation of all judges, not only those who are running for office. The concept is to have the judges run against their records, as evidenced by the evaluations, she asserted. Senator Porter interjected his feeling that it would be a real disadvantage to the competent qualified judges, not to have an evaluation available to their constituents. Without them, the judges fall victim to a judgement of their personality, he observed, which is not a fair basis for judgment. Senator Lee also voiced strong support for the resolution observing that citizens look for endorsements from such groups as law enforcement. There are many times the citizens call the police officers' association to ask them if they have endorsed one particular candidate over the other. This, he said, tells him that they are looking to reliable information sources to help them to make voting decisions. He also agreed the evaluation should include all judges, with an inclination to have the evaluation done on the fifth year, in anticipation of elections. Ms. Piscevich reported the supreme courts justices serve staggered terms, but the district court judges run every 6 years. In 1996 all the state's district judges will be up for reelection. Justice Rose suggested simply removing the words "who is a candidate for judicial office...," and leaving it up to the Legislature to decide. The main thrust of the recommendation is to have the evaluation prior to an election. Senator James interjected the panel seems to be arguing over nonissues, at this point. The resolution is designed to provide the voters "in a retention election" with a recommendation, with the view to change to a system where there would be retention elections. He stated he would not support an evaluation every 2 years, as he feels it would be counterproductive and would interfere with judicial independence. Senator Adler stated he has "almost the exact opposite opinion." He said he feels an evaluation every 2 years would be beneficial because most judges want to do a good job. Getting feedback from peers and citizens would serve to enhance this effort, he opined. Justice Rose replied other judicial commissions that were contacted during the Rose Commission's study period stated the primary benefit was just having the evaluation commission, as a tool for public information and accountability. He asked that the resolution's intent to bring a constitutional amendments does not get lost in discussions of the details. Senator Washington also commented. He stated it is his view that a judicial evaluation commission is a positive step toward making the public aware of the judge's work, in a positive light. He could not offer an opinion as to the frequency of the review, but he observed that if the review is negative, the judge will be in trouble with the voters and would likely improve in order to retain their votes. Finally, Ms. Piscevich recommended the removal of the wording, "...who is a candidate for judicial office." The initial formation of the evaluation commission is most important, with the details to come later through legislation as to the process to follow, she stated. She commented in accord with the justice's observation that simply having the commission in place will bring about a major change in the judiciary. Senator Porter told the committee that many newspapers do their own evaluation of the candidates. These evaluations are frequently "stacked" in favor of the views held by the newspaper and candidates who echo those views. An impartial review is very important. Ms. Lusk came to the witness table noting she was not speaking on behalf of Nevada Concerned Citizens at this time. Ms. Lusk told the committee it is very difficult to find information about judicial candidates. Candidates for judicial office, she reported, use the Canon of Judicial Ethics as an excuse to refuse to answer many questions. This may or may not be justified, she stated. Approaching attorneys and police officers for information about judges is extremely helpful, Ms. Lusk told. However, there is a distinct difference in the evaluation of various judges, depending upon who you ask; police officers or defense attorneys. She said it would be important to have representatives from law enforcement as well as attorneys on the commission. Ms. Lusk, as a citizen, suggested the ongoing evaluation would be of greater value than one done just before an election. The election evaluations would be viewed, she opined, as tainted by the election process. The regular, biannual reviews would allow the judge to respond to the criticisms given, to make some changes, so a preelection evaluation would reflect more positively, Ms. Lusk asserted. Additionally, Ms. Lusk said she feels the recommendation to retain or not retain is not necessary. This decision is up to the voters, and the commission should provide a neutral report of the performance of the judges using various, listed criteria. Providing this information will be invaluable to the informed voter, she insisted. There was no further testimony on the resolution and the chairman closed the hearing on S.J.R. 24. He opened the hearing on A.B. 553. ASSEMBLY BILL 553: Revises provisions governing private practice by attorney who is appointed as special prosecutor for limited duration with limited jurisdiction. Mr. Graham came to the witness table, accompanied by Belinda Quilicy, District Attorney, Pershing County. He explained this bill is a continuation of work done in the "waning hours of 1993" where concern was raised that a special prosecutor would still be able to work with other clients in order to support himself. Historically, the district attorney (D.A.) has been able to appoint a special prosecutor in cases where the D.A. is unable to prosecute a particular case or some other circumstance prevents doing so. Mr. Graham told the committee the current request comes from Pershing County which is presently dealing with a very high profile murder case. A special prosecutor was needed to deal with the case, because the Pershing County D.A.'s staff is small and could not provide the case the attention it would require. A former Douglas County D.A. was appointed, but there was some question about misdemeanor cases he had in Douglas, even after he passed them to another attorney in his firm. Mr. Graham explained all the above, and then noted there was one statute that did not get amended in the original draft, but language has been inserted to indicate "if they do not have a direct legal or ethical conflict of interest the appointment is possible." This would still allow a defense attorney to raise the issue of conflict, he reported. The change seems to clear up any questions or concerns. Ms. Quilicy explained the language makes a simple change in the statute, but it will allow district attorneys the ability to bring in a special prosecutor to assist with a case. She explained the circumstances of her situation. Language in NRS 7.105 says that "no deputy district attorney can have any criminal practice" and this resulted in the attorney picked as the special prosecutor being required to "get rid of the two cases" in which he was involved. He could not simply pass them to another attorney in his firm, but the cases had to be given up entirely, she reported. This was the result of a writ to the state supreme court, as the matter went that far before being resolved, Ms. Quilicy stated. This bill will allow district attorneys, especially in the rural counties, to get the assistance they need at particular times, by hiring a special prosecutor. She asked the committee for favorable consideration of the bill. There were no questions and the hearing on A.B. 553 was closed. There was no time to have the work session and the chairman continued it to the following day. There was no further business and the hearing was adjourned at 9:55 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 9, 1995 Page