MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      February 12, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:10 a.m., Friday, February 12, 1993, at Cashman Field Center in Las Vegas, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

GUEST LEGISLATORS PRESENT:

     

      None

     

COMMITTEE MEMBERS ABSENT:

 

      Mr. John C. Carpenter (excused)

 

STAFF MEMBERS PRESENT:

 

      Ms. Denise Miller

 

OTHERS PRESENT:

 

      Mr. Cal Potter/President, Nevada Appellate and Post-

      conviction Project

      Mr. Michael Pescetta/Executive Director, Nevada Appellate and       Postconviction Project

      Ms. Denell A. Hahn/Director, Clark County Social Service

      Ms. Ruth Urban/Project Manager, Neighborhood Justice Center

      Ms. Jean G. Georges/Mediator, Business Reorganization, Inc.

      Ms. Elizabeth Kolkoski/Attorney, Neighborhood Justice Center

      Ms. Jeanne Emmerson, J.D./Mediator, Mediation Center

      Ms. Ladeana G. Morgan, MSW/Supervisor of Family Mediation and       Assessment Center, Eighth Judicial District Court

      Ms. Charlotte S. Kiffer/Mediator, Alternative Solutions Mediation Services

 

Mr. Sader called the committee member's attention to a document on their desks entitled, "State Bar of Nevada," which started with a letter from Mr. Crossley.  He stated this report of the State Bar Committee on Family Law on Child Support was the subject of testimony on Monday, February 8, and was distributed to the committee for study before the meeting.

 

AB 72:      Makes appropriation to Nevada Appellate and Post conviction Project, Inc. (BDR S-1052)

 

Mr. Cal Potter, President, Nevada Appellate and Postconviction Project, introduced Mr. Michael Pescetta, Executive Director, Nevada Appellate and Postconviction Project, who spoke on behalf of AB 72.  He explained Nevada Appellate and Postconviction Project was an assistance project for counsel in the defense of capital cases. Nevada had 60 postconviction capital cases, the highest per capita in the nation, and the fewest number of lawyers to deal with those cases.  Mr. Pescetta informed the committee the Project's goals were to train the defense counsels to expand the number who were dealing with cases to dispose of cases in a cost effective manner.  Mr. Pescetta then described the Project's seminars and other accomplishments.

 

Mr. Sader commented support from the judiciary and other levels of government was widespread.  He then questioned Mr. Pescetta regarding funding for the Project.  Mr. Pescetta answered state funding was the only source of non-federal funding for the Project.  He further explained the administrative office of the U. S. Courts gave matching grants to states, and one of the conditions was non-federal funding (normally state funding) be obtained.  In this regard, he noted the Project was bringing in double the legislature appropriation in federal matching funds.  Nevada did not have alternative sources of funding which other states had, he added.

 

Mr. Pescetta pointed out to the committee adequate funding would allow cases to be done correctly the first time which would avoid successive levels of litigation.  The Project provided assistance to trial lawyers who might avoid a death penalty in the courts.  The goal was to make the case solid on the defense side as early as possible to avoid expense of having to try the case again.

 

 

      ASSEMBLYMAN PORTER MOVED TO DO PASS AB 72.

 

      ASSEMBLYMAN ANDERSON SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

AB 66:      Makes various changes relating to neighborhood justice centers and certain programs for mediation of disputes.  (BDR 1-217)

 

Ms. Denell A. Hahn, Director, Clark County Department of Social Service, stated Clark County Social Service sponsored the Neighborhood Justice Center in Las Vegas.  Ms. Hahn then introduced Ms. Ruth Urban, Project Manager of the Neighborhood Justice Center (Exhibit C).  Ms. Urban gave an overview of the Neighborhood Justice Center established in the last legislative session to create a comprehensive dispute information and referral program and a mediation program to provide services for all kinds of disputes (Exhibit D).  Ms. Urban remarked the Center had saved the court system time and money by providing an alternative.  She stressed the demand from the community to intervene in other disputes which the Center had been unable to do due to insufficient funding.

 

Next, Ms. Urban called attention to the school mediation program funded by a Title XX grant wherein sixth graders were being taught an abbreviated version of the mediation process as it pertained to sixth graders on the playground, in the lunchroom and in the classroom.  Ms. Urban then commented on the need for additional funding for the program to be expanded in other schools.

 

She pointed out the Center relied heavily on volunteers, and she introduced several of the 52 experienced volunteers.  She added 21 additional volunteers were scheduled for training, and stressed the need for staff and funding to meet the phenomenal demand for the Center's services.

 

Areas in which the Center hoped to expand were school mediation program, disputes with Americans with Disabilities Act, victim restitution and reconciliation, and homelessness, she illustrated.

 

Mr. Petrak questioned Ms. Urban regarding the Center's work in concert with the new family court in Clark County.  Ms. Urban replied the Center had an excellent relationship with the district court and the family court, and would work with the courts when needs existed.  She hoped the Center would have a field office for social service within the family court which would provide all social service programs.

 

Ms. Urban gave an example of work done by Operation Red Horse at Nellis.  Mr. Regan pointed out Red Horse volunteers were not a function of the Air Force.  Ms. Urban concurred and emphasized Red Horse volunteers were from the Center's volunteer department.

 

Mr. Sader observed AB 66 concerned a fee increase.  Ms. Urban explained the Center's revenue comes from filing fees, and said $5.00 comes from civil filings in district court and some of the filings in justice court.  She added a revenue shortfall was caused by a reduction in filing of small claim actions in justice and district court, and in addition, the cost of running the program was underestimated.  Ms. Urban requested the filing fee be increased to $10 to fully fund the program.

 

Mr. Sader asked for clarification of language in Section 3 (a) and (b).  Ms. Urban advised no fee is presently charged for any of the Center's services.  In certain rare complex cases where multi-parties and thousands of dollars were involved, the Center would like to charge a fee, she stressed, and added the average case would not be charged a fee.

 

Ms. Urban then pinpointed the subject of training and emphasized the big demand for mediation training of volunteers.  She exclaimed intensive training of 35 to 40 hours was free to volunteers, but said the Center would like to use this training as a source of revenue when the Center trained attorneys.  Ms. Urban informed the committee approximately 20 percent of the Center's volunteers were attorneys who were interested in the mediation process.  She spoke concerning a joint project which had been discussed with the University of Nevada at Reno to train attorneys.  A fee would be charged for the training, and would be a source of revenue for the Neighborhood Justice Center.

 

Mr. Sader reminded the committee the Board of County Commissioners would decide what the fees would be and when the Center could charge fees.

 

Mr. Sader further asserted AB 66 deleted the sunset clause which expired the act June 30, 1995.  Ms. Urban justified deletion due to the phenomenal success of the Center and stated funding was difficult to obtain, especially matching funds for grants, when a sunset clause was in the statute.  She outlined hiring of staff, capital expenditures, expanded operation, and permanent planning would be difficult if funding in the future was uncertain.  Ms. Hahn then added the intention of Clark County Social Service and Clark County as well as the state was to plan space needs and employee training further  ahead than two years for efficiency and economy.

 

At this point, Mr. Anderson expressed concern about program expansion and doubling of fees when the Center was not adequately funded to meet the first demands.  Mr. Anderson referenced Page 19 of Exhibit D. 

 

Ms. Urban agreed the Center was not adequately funded to meet the core program that was envisioned originally and stated additional funding was needed to provide staff to the core program before the Center could expand.  The Center would not expand in other areas until the Center could adequately staff and meet the demand for the core program, she reiterated.

 

Mr. Bonaventura asked for a clarification.  For example, if he filed a civil action against a person and did not wish to go to mediation (such as a landlord suing a tenant who wrecked the house) would this fee be charged to the landlord?  Ms. Urban replied, "Yes, the fee would be charged if a civil action was filed within the money limits for a justice court, or at a district court the $5.00 filing fee as the bill exists at present."  If AB 66 was approved, $10 would go to the Neighborhood Justice Center to provide mediation services for the people who voluntarily came for mediation services.  Ms. Urban explained a letter would be sent inviting the landlord and tenant to come to the mediation process to see if the problem could be resolved before the court date.

 

Mr. Sader said this procedure was started some time ago on court filings and other fees in the justice system to fund programs which had something to do with the justice system.  Most of the people who filed in district court and in justice court did not actually receive a direct benefit from this program, but the thought was it would be better to charge those who used the current system than the general taxpayer.

 

In response to a question from Mr. Bonaventura, a discussion ensued regarding the percentage of people who would benefit from the fee they paid.

 

Mr. Scherer questioned Ms. Urban regarding Page 19 of Exhibit D and noted the entire increase in projected 92/93 budget from 91/92 budget was salaries and benefits of approximately $125,000.  Ms. Urban responded the program was heavily wage and salary intensive.  Two positions of the original program had not been filled due to lack of money.  The positions were Social Worker 2 and Case Manager.  Mr. Scherer asked if additional funds received from fees would be used to hire employees over and above those or to start paying volunteers.  Ms. Hahn answered the fees would be used for additional positions in the original core program, not for personalized areas or expansion,

and stated the core program was the main need.

 

Mr. Scherer then asked if the Center would start paying people who previously had been volunteers.  In response to Mr. Scherer's inquiry, Ms. Urban discussed the payment of certain expenses to volunteers.

 

Mr. Scherer shared Mr. Anderson's concern for programs which expanded too rapidly and did too many things in a mediocre fashion, and consequently did not perform the core function well.  He expressed his hope the Center would continue to perform the core function well.

 

Next, Mr. Sader questioned Ms. Hahn regarding use of the fee money, and he asked if Clark County was now funding the staff for a portion of the project.  Ms. Hahn replied, "Yes."  She elaborated her salary, the salary of the management of Clark County Social Service, and the computer programs all benefit the program, and Clark County funding would not change when additional funding was received.

 

A discussion ensued between Mr. Scherer, Ms. Hahn, and Ms. Urban which concerned payment of stipends to graduate students, and the number of graduate students in the Neighborhood Justice Center.

 

At this point, Mr. Sader vocalized his concern of AB 66.  He observed it was often found during the course of the legislative session, bills had an effect or purpose, wholly or partially, of shifting funding between local and state governments.  What sometimes appeared as a fee increase for new services was in reality a mechanism for getting money into the county coffers.  Mr. Sader wanted to get on record this was not occurring with AB 66.  He stressed, "If we provide for increases in fees, those fees are going to fund new positions which are not currently paid by any government, and will provide additional services for citizens rather than shift financial funds from one government to another."

 

Ms. Hahn confirmed fees generated for Neighborhood Justice Center would not go to subsidize social service programs.

 

Mr. Regan inquired if the original budget figures used to establish this project were available, and observed the 1990/1991 budget figures were not included in Exhibit D.  Ms. Hahn could provide the figures, she responded.  Ms. Urban explained there was no 1990/1991 budget for the Neighborhood Justice Center.  Only projections were done in 1991 and the projected budget was $350,000.  The Center was told by the county the Center would be a self-funded program.  However, revenues were not coming in and not enough revenue existed to cover salaries of current employees.  Clark County agreed to make up that difference,  not through social services budget but through Clark County.  A revenue shortfall existed and still existed for current employees' salaries. The Neighborhood Justice Center could not even expand to the original projections to adequately cover the program, Ms. Urban continued.

 

Mr. Toomin offered his observation of the program which he praised for its benefits to citizens of Clark County.

 

Mr. Toomin then expressed his interest in education and addressed the committee concerning the peer mediation program.  He pointed out the initial program was funded with a grant of $37,000 and asked how the balance of the program would be funded, and percentage-wise what the cost would be in relation to the budget.

 

The school mediation program could not be continued without grant funding, Ms. Urban answered, as costs for this program did not come out of core funding.  She stated another Title XX grant would be sought to further the program.  Mr. Petrak asked if the Title XX federal grant was an annual grant, and Ms. Urban stated it was not.  With the continued budget cuts on the national scene, Mr. Petrak suggested obtaining grants could be a problem.

 

Mr. Toomin concluded his questions and asked if reimbursement for gasoline for some of the volunteers and other minor reimbursements came under the fringe benefit category, and he further inquired what would be considered a fringe benefit.  Ms. Urban replied these reimbursements were strictly for current salaried employees and stated fringe benefits would include health insurance and normal fringe benefits paid by the county.

 

Ms. Jean G. Georges, Business Reorganization, Inc., provided the committee with prepared text, and spoke in favor of AB 66.  (See Exhibit E).  Ms. Georges stated for information she was a volunteer for the Neighborhood Justice Center.

 

Ms. Elizabeth Kolkoski, Neighborhood Justice Center, spoke in favor of AB 66.  Ms. Kolkoski, who was an Attorney, expressed her opinion the fee was a reasonable one.

 

Ms. Jeanne Emmerson, JD, Mediation Center, Pahrump, Nevada, explained she conditionally supported AB 66.  (See Exhibit F). 

Mr. Anderson asked Ms. Emmerson several pertinent questions to try to understand why people may not have come to her agency for mediation services.

 

In responding to Mr. Anderson's inquiries, Ms. Emmerson added people who came to the Neighborhood Justice Center should be made aware other options existed for mediation.

 

Mr. Scherer questioned whether Ms. Emmerson thought the complex cases the Center now wants to charge a fee for should be referred to private mediation services.  Possibly, she replied, and reiterated the whole point was to give people a choice, and she suggested the Center provide names of private mediators.

 

Mr. Collins asked Ms. Emmerson if her charge for the service was $5 or $10, the same as the Center.  Ms. Emmerson replied her charges were not the same.

 

Ms. Ladeana G. Morgan, Supervisor of the Family Mediation and Assessment Center for the 8th Judicial District Court, spoke on behalf of the Family Mediation Program and stated the Program supported the Neighborhood Justice Center.  However, Ms. Morgan clarified a  concern of her Center.  She stated her center provided mediation services for families involved in contested custody disputes.  As the bill read now, she stated, her Center was concerned the Neighborhood Justice Center would enter the arena of mediation of cases involving custody or visitation of a child.  With the support of family court judges, her Center hoped to move toward a mandatory mediation model in 1994.  She, therefore, was against duplication of services, but emphasized her Center's support of the Neighborhood Justice Center.

 

Ms. Urban clarified language on Page 1 of AB 66 was to further the mediation program in Washoe County.  The original legislation called for creation of the Neighborhood Justice Center only in counties with populations of 400,000 or more.  Legislation called for creation of child custody mediation programs in other counties, and specifically the program in the 2nd Judicial District Court in Washoe County.  The increase of funding would benefit Washoe County, Ms. Urban contended.

 

Mr. Sader clarified the language of AB 66, Page 2, Section 3 to Ms. Morgan, that the Neighborhood Justice Center would not focus on child custody disputes in Clark County.

 

 

Ms. Charlotte Kiffer, Alternative Solutions Mediation Services, stated she was a private practitioner in mediation in Clark County and had been mediating since 1985.  She also worked for 6 years in the court program in District Court.  Ms. Kiffer spoke in opposition to AB 66 as it was written.  If funds were to be generated to fill the need for the core program, she suggested a charge for the services provided to the people who received the services.  Why charge someone for those services who would not benefit from those services, she asserted. 

 

Ms. Kiffer proposed establishment of a sliding scale fee and also suggested seeking funds from other agencies who had benefitted from services provided by the Neighborhood Justice Center.

 

Ms. Kiffer asserted her support of the Neighborhood Justice Center and commended volunteers and staff who had made the Center a viable program.

 

Ms. Kiffer thought the school program was a wonderful program.  She apprised the committee some schools in Clark County with no grant funding had implemented this program, and she questioned how schools could establish the program without outside funding.  She suggested looking at the schools which had done this to learn from them and expand upon their accomplishment.  Relative to the sunset clause, she felt the program should be in effect for two years before it was made permanent.

 

Mr. Sader stated AB 66 provided for an increase of funding for a program in Washoe County as well, and since no testimony had been heard, AB 66 would be heard in Northern Nevada in early March.

 

Mr. Sader closed the hearing on AB 66.

 

AB 174:     Limits right of natural father to custody of or visitation with child conceived as result of sexual assault and prevents admission of certain evidence by accused in prosecution for sexual assault. (BDR 11-174)

 

Mr. Sader discussed AB 174 which was amended and do passed based on a representation he made to the committee.  Mr. Sader asked Mr. Pitaro if Mr. Pitaro had anything in writing on an additional amendment to consider on AB 174.  Mr. Pitaro then gave the committee copies of a Proposed Amendment to AB 174 (Exhibit G).  Mr. Sader then read the Proposed Amendment to AB 174 (Exhibit G) to the committee and stated the committee had passed the bill on an Amend and Do Pass motion.  He informed a two-thirds vote was needed to consider another amendment and asked if the committee wanted to reconsider AB 174. 

 

At this time, Mr. Williams asked the committee to reconsider the motion that was made the previous day, February 11, 1993.

 

Mr. Collins cited an example which was already law and stated the amendment would make the law clearer.

 

Mr. Gibbons asked Mr. Pitaro if insertion of the amendment would limit the avenues or areas of motion outside of the expressions of health and safety of the victim.

 

Committee discussion ensued regarding the proposed amendment to AB 174.  Mr.Williams cited numerous discussions were held on AB 174 and as key sponsor of the bill, he expressed his concern for the strongest situation for protection.  He continued, for the benefit of the bill, he would withdraw the proposed amendment before the committee as a consideration and accept the Amend and Do Pass motion made by the committee February 11, 1993.

 

Mr. Sader then said the amendment would be ordered and it would be on the floor after the committee's return from Las Vegas.

 

Mr. Toomin referred to AB 76, and Mr. Sader pointed out Mr. Porter had suggested legislative counsel be asked to review the subject.  He noted a question of constitutionality of fees on bail and the need to see if legislative counsel concurred with the Attorney General.

 

Mr. Sader stated he had a request for a bill draft which came through a recent court decision which related to sentencing and the ability of the Supreme Court to increase or decrease a sentence based on cruel and unusual punishment or the concept of disproportionate sentences.  In most states, he noted, the Supreme Court had the power to reduce the sentence if the sentence was grossly disproportionate to sentences in the state.  The recent court decision ruled that would not happen in the State of Nevada.  He continued the concept was to obtain the bill draft and hear testimony on the bill at a later time.

 

      ASSEMBLYMAN PORTER MOVED TO  HAVE THE BILL DRAFTED.

 

      ASSEMBLYMAN SMITH SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

 

There being no further business to come before committee, the meeting was adjourned at 9:55 A. M.

 

                                    RESPECTFULLY SUBMITTED:

 

 

                                                                    

                                    BOBBIE A. MIKESELL

                                    Committee Secretary

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Assembly Committee on Judiciary

February 12, 1993

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