MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 25, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:06 a.m., March 25, 1993, in Room 332 of the Legislative Building, Carson City, 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. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. John H. Robinson, United States Department of Justice,
United States Marshals Service
Mr. Robert Cose, United States Department of Justice,
United States Marshals Service
Ms. Pat McGaffin, Correctional Case Records Manager, Nevada Department of Prisons
Mr. Dick Carver, Nye County Commissioner
Judge Andy Cray, Sparks Municipal Court
Mr. Brian Dorn, Court Administrator, City of Sparks
Mr. Robey Willis, President, Nevada Judges Association
Ms. Laurel Stadler, Mothers Against Drunk Driving
Ms. Judy Jacoboni, Mothers Against Drunk Drivers
Mr. Edward Presley, Information Specialist, NOR-DAK
Mr. Fred L. Hillerby, Government Relations, Hillerby and Associates
Ms. Stephanie Tyler, Wedding Industry Lobbyist
Mr. George Flint, Proprietor, Chapel of the Bells
Mr. David Horton, Committee to Restore the Constitution
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens
Mr. M. Douglas Miller, Nevada Miners and Prospectors Association
Mr. Cliff Gardner, citizen
Mr. Donald G. Strachan, Consulting Geologist
Ms. Juanita Cox, citizen
Ms. Gayla Higgins, citizen
Ms. Marilyn O'Connor, citizen
Mr. William U. Inman, exploration geologist
Mr. Clifford Thompson, citizen
After the roll call, Chairman Sader opened the hearing on A.B. 360.
ASSEMBLY BILL NO. 360. Requires 1-year term of imprisonment as condition of suspension of sentence for causing death or substantial bodily harm while driving under influence of intoxicating liquor or controlled substance.
Mr. Robin Bates, Chief of Classification and Planning, Nevada Department of Prisons (NDP), introduced A.B. 360.
Ms. Pat McGaffin, Correctional Case Records Manager, Nevada Department of Prisons, testified in favor of the passage of A.B. 360. She stated A.B. 360 would be a practical approach in the treatment of offenders in regard to sentencing. She addressed the similar DUI statute which pertained to third felony convictions and the 1-to-6-year prison terms. She added inmates under this sentencing scenario must serve one-third of their sentences until they became parole eligible. At the present time, the inmates appeared before the board for a supervised release, or the inmates would have their sentences discharged.
According to Ms. McGaffin, under A.B. 360, Section 3, inmates were received into the penal system with sentences of more than 1 year incarceration time. She alleged NDP did not have direction in reference to the present statute. She asked if credits could be applied against the term of imprisonment. She also queried if prisoners would become parole eligible after serving a third of their sentences. Ms. McGaffin declared, under the current provision, the Attorney General's opinion in regard to the one-year sentences was, as a condition of probation, credits would not apply. Inmates entering prison with one-year sentences, who had probation supervision, would complete one-year prison terms.
The problem, Ms. McGaffin maintained, focused on those inmates serving more than one year sentences as there were no guidelines for NDP to follow. She posed an additional concern and asked if the one-year parole eligibility would apply as it would be similar to the same scenario as those inmates sentenced under A.B. 360, Section 1 or Section 2. She elaborated on the concern and continued, if inmates received a one-to-twenty-year sentence and served one-third of their sentences, they would be eligible for parole release. She noted it would be up to the Board of Parole Commissioners to either consider the cases or discharge the sentences.
At the present time, Ms. McGaffin maintained there were 6 inmates in the state penal system who had been sentenced to more than one year incarceration. The credits which applied, in terms of their sentencing, mandated the inmates serve one year flat time. After that, according to Ms. McGaffin, the one-third parole eligibility would come into effect and the inmates would be allowed to appear before the parole commissioners. She noted the problem occurred when the NDP allowed the inmates to flatten out their sentences and the credits did not apply. The NDP contended, if probation was a condition of the one-year imprisonment, the sentence should be a one-year flat sentence.
Ms. McGaffin requested the sentencing issue be clarified so NDP did not receive inmates into the system who were receiving 10 year sentences. To clarify the issue, she presented examples where inmates received 10-year sentence terms and possible ten- year probations. She contended the inmates in this scenario would be required to flatten out their sentences which would essentially entail serving 5 to 6 years of the sentences. The question posed was, would two probation statuses be discharged, or were the inmates parole eligible? Ms. McGaffin queried further, after the inmates served the one-year-flat sentence, were they eligible to appear before the parole commissioners for parole and proceed on to probation supervision? The NDP, in conjunction with the Attorney General's Office, requested clarification under A.B. 360, Section 3. She reiterated, at present, the current statutes did not provide the guidelines to manage inmates within the prison system.
Mr. Sader requested further clarification of the issues the NDP had with A.B. 360. He noted the DUI statute was the only law where DUI offenders were sentenced for causing death or bodily harm, as opposed to the other felony DUI statute where offenders were convicted for third-time DUI offenses committed within a 7 year period. He added both types of DUI offenders were admitted into the prison system. A.B. 360 applied to the death or substantial bodily harm category of DUI offenders.
To further clarify the issues brought before the committee, Ms. McGaffin stated the NDP requested direction on A.B. 360, Section 3. She inquired as to how the NDP would apply credits in those cases where inmates served one-third of their sentences. Would these inmates be eligible for parole if sentenced to probation? In reply, Mr. Sader stated, under the current law, judges had the authority under these types of offenses not only to sentence individuals to prison terms, but also to apply probation after the completion of prison terms. Ms. McGaffin concurred with Mr. Sader's statement.
Mr. Sader elaborated on what he viewed as the issues the NDP was facing and referenced the scenario presented earlier which addressed the DUI offenders who caused death of one or more persons. As Mr. Sader understood, these types of DUI offenders might be sentenced to 10 years imprisonment, after completing the 10-year sentences, the inmates could be eligible for 10 years of probation. Mr. Sader pointed out the DUI offenders were assigned the sentences up front. Ms. McGaffin confirmed Mr. Sader's summation of the issues.
Mr. Sader continued with the analogy where prisoners were interned into the penal system. He noted the confusion arose as to how the NDP treated the inmates in regard to parole. He surmised parole would be covered provided the individuals were eligible for release in less than 10 years. Under these terms, the inmates would be placed on parole from the time they were released until the 10-year sentences were completed, at which point, the inmates would be placed on probation.
Ms. McGaffin responded to Mr. Sader's analogy by adding the NDP was not operating under that particular scenario for the simple reason there were differing opinions within three specific state agencies which were the Board of Parole Commissioners, the Department of Parole and Probation and the Department of Prisons. She added, at present, the NDP was not taking a position on these issues. The NDP had authorized one inmate parole eligible. The NDP was presently operating under the Attorney General's request to refrain from further action under this situation until the law had been clarified.
Ms. McGaffin maintained it had been the Attorney General's Office which introduced A.B. 360, primarily to clarify the issues where probation was the condition of incarceration. She alleged it was the contention of the Department of Parole and Probation that inmates were under the supervision of the district courts, therefore, the offenders would not be eligible for parole releases. She alleged the inmates would not qualify under this scenario, which would be to complete the terms of imprisonment and complete the terms of parole supervision. When the terms of imprisonment were completed under parole supervision, the inmates would be processed onto probation. She stressed the NDP was looking for clarification on these issues.
Mr. Sader asked how the process was conducted by the NDP at the present time. Ms. McGaffin responded, on 10-year prison sentences with 10 year probation terms, the cases would be viewed by the Parole Commissioners and the Department of Parole and Probation. According to Ms. McGaffin, the inmates would never become eligible for parole. Under these scenarios, the inmates would have their sentences flattened out and process on to probation supervision.
In response to Ms. McGaffin's testimony, Mr. Sader noted this scenario did not denote the inmates would serve 10-year sentences because they received good-time credits. Ms. McGaffin confirmed his statement and added the inmates would complete approximately two-thirds of their sentences. When the inmates were processed out of the penal system, they would become eligible for probation. According to Ms. McGaffin, it was the consensus of the three agencies to refer the cases back to the district courts and the sentencing judges. At this time, the NDP would inquire as to what the sentencing judges' intentions were when they sentenced the offenders to more than one year imprisonment as conditions of probation. According to Ms. McGaffin, A.B. 360 would clarify whether probation was a condition of the sentencing. The individuals could be sentenced to no more than one year in prison. In these cases, credits would not apply. After completion of one year of incarceration, the inmates would be processed on to probation supervision.
As Mr. Sader understood, under the 10-year sentencing and 10-year probation terms, A.B. 360 would mandate judges to sentence inmates to one-year terms. Ms. McGaffin confirmed this. She elaborated, judges would have options under A.B. 360, Sections 1 and 2, to apply sentences of 1-to-20 years imprisonment under cases which involved DUI bodily harm convictions. She continued, under the 1-to-20-year sentencing scenario, the one-third parole eligibility applied. It would be up to the Parole Commissioners whether or not to grant parole to the inmates. This would clarify for the state agencies, if probation or prison time were to be conditions of the sentencing, there would be a mandatory one-year flat time with no credit application. The inmates would then process on to probation supervision.
Mr. Sader contended the NDP's proposal to limit all felonies, particularly those felonies which involved DUI substantial bodily harm, to one-year sentences, would not pass. The committee required further clarification as to what the problems were and what the options might be.
Ms. McGaffin addressed Mr. Sader's concerns and stated the NDP would like to see clarification in the law in terms of those inmates sentenced to more than one-year incarceration. Under A.B. 360, Section 3, she asked if parole would be considered after inmates served one-year flat time? If inmates came into the prison system with 10-year sentences, under A.B. 360, Section 3, after serving the one-year flat time, would the inmates be eligible a year later for parole consideration?
Ms. McGaffin noted the issues the statute presented were difficult for the state agencies to manage. She contended it would be easier if the section were removed and the 1-to-20-year sentence applied. The individuals would enter the penal system with one-to-twenty-year sentences and parole would be an option after serving one-third of the sentence. It would be up to the parole commissioners as to whether they wanted the individuals out on parole supervision. She referenced A.B. 360, Section 3 where probation was part of the sentence.
In reply to Mr. Anderson's inquiry, Ms. McGaffin stated A.B. 360 would allow the sentencing judges the options in sentencing, i.e. to sentence offenders to one-year prison terms. In these instances, the inmates would process on to supervised probation under the one-to-ten-year sentences and subsequently become eligible for probation supervision. She pointed out the difficulties the NDP was experiencing with management of the sentences and referenced other statutes which dictated parole eligibility following the one-third sentence and the credit applications. She emphasized the dilemma between the three state agencies. Would the inmates be eligible for parole supervision when they came in with ten-year sentence terms? After serving the ten-year flat time, would the inmates be eligible for parole and probation?
As Mr. Anderson understood, under the current statute, judges could not sentence offenders to more than one year imprisonment if the intention was to eventually become eligible for parole and probation. Judges would not incarcerate offenders for less than one year. If the judges intended to apply parole and probation, Mr. Anderson did not understand why the agencies would apply restrictions. Mr. Anderson questioned the five-year sentences, where the inmates had served two years of the sentence. Why couldn't the inmates be granted parole for the remaining three years and pick up the probations the judges levied. He reasoned, if A.B. 360 passed, there would be greater jurisdiction for parole and probation than the sentences levied by the judges, who initially heard the cases. Mr. Anderson alleged A.B. 360 would make the suits stronger and override the judges' determinations. Ms. McGaffin was unsure if the bill would override the decisions of the judges.
Mr. Sader brought attention to the memorandum addressed to the committee initiated by Ms. Dorothy Nash Holmes, Washoe County District Attorney, Exhibit C. The District Attorney opposed passage of A.B. 360. Her position on the bill paralleled the stand maintained by the NDP. Ms. Holmes suggested the committee disapprove the statutory change and consider repealing A.B. 360, Section 3 altogether.
Ms. Laurel Stadler, Mothers Against Drunk Driving (M.A.D.D.), noted the probation tail which applied to the DUI offenders enrolled in the 305 program which was initiated in 1992. This might have addressed the issue where felony DUI offenders could be put into the 305 treatment program when exiting from prison, which released them earlier and provided for the in-house arrest program.
According to Ms. Stadler, M.A.D.D. had reservations in reference to the time periods alluded to and questioned how much time was actually served in prison. It was the M.A.D.D. advocates' understanding, should the bill pass, with the one-year flat time placed into effect, inmates would be eligible for the 305 treatment program in 61 days on the one-year sentence as the in-home arrest program was considered the same as incarceration.
Ms. Judy Jacoboni, representing M.A.D.D., described what a twenty-year sentence translated to. She related her personal experience. Her daughter had been killed by a drunk driver in April 1990. The female offender had been sentenced to twenty years incarceration. The offender's first eligibility for parole would have been October 1993, which, according to Ms. Jacoboni, was not one-third of the sentence time. She related what actually transpired; the offender had completed the community in-house arrest sentence as her sentence time was within one year of her first eligibility of parole. She completed phase one of the 305 treatment program and was released into the community January 1993. Ms. Jacoboni contended the twenty-year sentences levied did not translate down to the actual time served.
Ms. Stadler agreed with the position of the Washoe County District Attorney and the NDP to eliminate Section 3 of A.B. 360.
Mr. Ben Graham represented the Nevada District Attorney's Association. He concurred with the NDP the statute created problems. He felt the bill should be repealed.
There being no further testimony to come before the committee on A.B. 360, Chairman Sader closed the hearing on the bill. The committee would refrain from acting on the bill until further clarification was obtained.
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ASSEMBLY BILL NO. 361 Authorizes municipal judge to perform limited number of marriages in this state and authorizes justice of the peace to perform limited number of marriages in commissioner townships.
Judge Robey Willis, President of the Nevada Judges Association, was the requestor of A.B. 361. He testified on behalf of the municipal court judges and justices of the peace. Mr. Willis alleged, the passage of A.B. 361 would allow justices of the peace in commissioner townships and municipal court justices to conduct up to five marriages per year.
Mr. Willis contended the intent of A.B. 361 was not to compete with marriage commissioners or wedding chapels. The bill would permit lower court justices to perform up to five weddings per year. The lower court justices would not receive compensation for their services. According to Mr. Willis, the municipal court judges felt there was a glitch in the statute as other judges such as supreme court judges were permitted to conduct wedding ceremonies.
Mr. Willis ascertained a maximum of 60 weddings per year could be performed in Reno and Sparks by lower court justices. In Las Vegas, North Las Vegas and Henderson, a maximum of 80 marriages per year could be conducted. This would not put a dent in the wedding industry, he contended.
Judge Andy Cray, Sparks Municipal Court, testified in favor of the passage of A.B. 361. He alleged, as a municipal court judge, he had been requested to conduct marriage ceremonies approximately 12 times in six years, which would not threaten the wedding industry.
Mr. Scherer asked why the lower court judges were required to obtain prior approval from district court judges to perform marriage ceremonies. In reply, Judge Willis stated, under the current statute, it would be a misdemeanor offense for lower court judges to perform wedding ceremonies. Judge Willis contended obtaining permission to conduct ceremonies from the district court judges was not the issue. The issue was the feasibility of requesting district court judges to conduct the ceremonies on their time off.
Mr. Porter's concerns regarding the issues related to A.B. 361 paralleled those of Mr. Scherer's. He contended the number of marriages conducted per year by lower court justices should be unlimited as there did not appear to be any competition with the wedding industry nor did there appear to be monetary incentives for lower court justices in these matters.
Ms. Stephanie Tyler, represented the marriage chapel interests of Mrs. Dawn Gibbons. According to Ms. Tyler, the language contained in A.B. 361, along with the safeguards and penalties, made the bill acceptable. Mr. Sader asked if there was any concern with justices of the peace or municipal court judges being required to obtain district court approval. Ms. Tyler felt this specific requirement was more of a historical link to the previous language. She concurred with retaining this requirement as a safeguard.
Mr. Carpenter addressed the feasibility of raising the cap in the number of marriage ceremonies conducted per year to 12 ceremonies. Ms. Tyler felt the limit of one marriage ceremony conducted per month would be acceptable, although she preferred the bill limit the number to 5 marriage ceremonies per year. It was noted the provision did not apply to the rural areas of the state, only to urban judges.
Mr. George Flint, proprietor, Chapel of the Bells Wedding Chapel, testified against the passage of A.B. 361. He alleged the wedding chapel industry was hesitant to allow justices of the peace to profit financially from conducting weddings in Nevada due to historical abuses.
Mr. Flint explained A.B. 141 had been passed earlier in the session which would essentially disallow a marriage commissioner in Washoe County at some point in time. He asked if passage of the bill would encourage the lower court judges to return before the legislature and request the law be reconsidered again. He also contended the limit of 5 marriage ceremonies per year was too low. He contended as long as the parameters of the bill were followed, there should be no problem with the limit. The marriage industry did not want competition between the private sector and the public sector.
Mr. Flint referred to a Supreme Court decision made under Truesdale vs. Galloway, which defined district judges should not have administrative duties. Prior to this decision, district court judges determined who would conduct marriage ceremonies. According to Mr. Flint, it was more feasible for the county clerks to make determinations as they had established procedures for issuing permission, except district court judges or supreme court justices. As a historical point of interest, in approximately 1971, prior to the change in the law, judges and counties relied on marriage revenues as the primary sources of income which totaled, in some instances, approximately $100,000 per year.
Mr. Brian Dorn, Court Administrator, City of Sparks, testified in favor of A.B. 361. As a former Justice Court Coordinator for Maricopa County, Phoenix, Arizona, he alleged the language contained in A.B. 361 would stop any abuse in the conducting of marriage ceremonies.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 361. He opened the hearing on A.B. 363.
ASSEMBLY BILL NO. 363 Allows admission into evidence affidavit of certain laboratory directors to prove results of test conducted at medical laboratory.
Mr. Fred L. Hillerby represented the Associated Pathologists Laboratories in Las Vegas and Dr. Henry Salloway, Pathologist and Laboratory Director. Mr. Hillerby introduced A.B. 363. He stated the bill was requested to address issues where expert witnesses, i.e. laboratory directors, were called to provide testimonies regarding tests conducted in the laboratories. According to Mr. Hillerby, this requirement was a time-consuming process. To alleviate the problem, he suggested allowing for the use of affidavits to confirm the results of tests.
According to Mr. Hillerby, affidavits were permitted under several Nevada Revised Statutes (NRS), i.e. NRS 50.325, which pertained to the existence of alcohol or controlled substances; NRS 172.135, which provided for the admission of affidavits as evidence receivable before a grand jury; and NRS 56.020, which allowed for the determination of parentage or identity and allowed for the testimonies of experts to be taken by deposition, which was not the same as an affidavit. Mr. Hillerby stated A.B. 363 would allow for affidavits to be presented and was simpler than taking depositions.
Mr. Hillerby noted A.B. 363 would apply to directors of medical laboratories. He declared directors were defined as persons responsible for the administration of the technical and scientific operations of medical laboratories. Medical laboratories were defined as entities which were licensed by the state and provided for the oversights to guarantee the various procedures, the integrity of the materials tested and the competency of the staff, as well as the oversight of the equipment used in performing the tests. He noted there were some provisions regarding controlled substances and blood alcohol tests relating to DUI offenses.
Mr. Porter's concerns in reference to A.B. 363 were contained in Chapter 50 of the Evidence Code, which would be changed. This would allow affidavits to be introduced during preliminary hearings. His concerns were with the way expert witnesses would be assaulted as to how the tests were performed, and whether or not the tests performed were scientifically recognized in the community as being the most accurate tests.
Mr. Porter suggested drafting language in A.B. 363 to detail the laboratory findings. The affidavits would contain information as to what tests were performed, how the tests were conducted and what the findings were. He contended there would be more safeguards for evidentiary purposes. The suspects would have to testify in accordance with the test results. Mr. Porter asked if Mr. Hillerby, or his clients, had any objection to inserting this type of language into A.B. 363. Mr. Hillerby responded by stating he, and those persons he represented, would not object to the insertion of appropriate language, specifically pertaining to A.B. 363, line 8, which described the testing.
Mr. Graham and Mr. Hillerby would work together to devise amending language for A.B. 363 which would address the concept affidavits would provide the foundational elements and the results of the tests.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 363. Chairman Sader opened the hearing on S.B. 2.
SENATE BILL NO. 2 Provides United States marshal and his deputies certain authority to arrest persons without warrant.
Chairman Sader advised the committee testimonies pertaining to S.B. 2 had been heard during a previous hearing. Time limitations had prevented proponents and opponents to complete testimonies on the bill.
Mr. John Robinson, United States Department of Justice, United States Marshals Service (USMS), introduced S.B. 2. He noted he had testified during the previous hearing and returned to expound on his presentation.
Mr. Robinson addressed several issues brought before the committee during the previous hearing. One concern which surfaced was the allegation the USMS was attempting to infringe on state sovereignty. An additional concern exhibited by citizens, should S.B. 2 pass, the USMS would support the Bureau of Land Management (BLM) and the United States Forest Service (USFS). According to Mr. Robinson, there was concern the USMS would harass and arrest local ranchers. Mr. Robinson addressed these unfounded concerns and stated this was not the intent of the USMS.
Mr. Robinson informed the committee the USMS was a specialized, well-trained, federal law enforcement agency. Only specified laws could be enforced by USMS officers. The duties of USMS officers consisted of protecting federal courts, protection of federal witnesses, fugitive investigations, prisoner transportation and custody, administering the asset seizure program and the operation of the Special Operations Unit.
Mr. Robinson confirmed the only time USMS deputies would be active in the field would be when on specific assignments, such as apprehending fugitives under the authority of fugitive warrants, serving federal process or following court orders.
Mr. Robinson emphasized the USMS was a separate and distinct federal agency. The duties and jurisdictions of the USMS, BLM and USFS did not overlap. The USMS did not assist any other federal agencies in the performance of their duties nor did the USMS assist in enforcing other agency laws. He affirmed the USMS had no hidden agenda. There was no intent for the USMS to obtain specific local powers to harass some segment of the community. He noted the only time the powers to arrest would be secondary was when USMS deputies were on assignment and fugitives with warrants were arrested.
Mr. Robert Cose, United States Department of Justice, United States Marshals Service, expounded on the testimony he presented during the previous hearing. He stated the original concept of S.B. 2 was to afford the USMS the opportunity to assist the local law enforcement agencies.
Mr. Cose rescinded his testimony presented before the Senate Judiciary Committee where he had stated earlier there had been no detrimental effect on the USMS without the provisions contained in S.B. 2. Upon researching the issue, Mr. Cose had discover within the last 12 months, on three or four different occasions, suspects had been arrested on misdemeanor federal charges and brought into the custody of the USMS. The offenders appeared before the federal magistrate and had been released on their own recognizance. It was found there were local warrants on the individuals. Mr. Cose advised the USMS could not legally detain the offenders on the local warrants.
According to Mr. Cose, in the past, the USMS could make arrangements to expedite incidents by contacting local authorities. On three or four different occasions within the last year, the USMS had been obligated to release the suspects and they eluded local authorities on the outstanding local warrants. Mr. Cose queried as to what capacity were USMS deputies expected to act when confronting crime suspects, as citizens or law enforcement officers. He noted USMS officers did not have the local authority to arrest, although they could lodge citizens' complaints.
Mr. Toomin asked how many other states bestowed on the USMS the powers to arrest locally. Mr. Cose replied there were approximately 12 or 13 other states that had granted this authority. The hurricane in Florida and the initial Los Angeles riots were examples where the USMS arresting powers had been granted through the governor's special proclamation. According to Mr. Cose the USMS preferred anonymity other federal agencies did not pursue.
Mr. Scherer asked what the training requirements were for USMS deputies. Mr. Robinson responded by stating all applicants took standard written tests, oral interviews, physical examinations and attended 17 weeks of basic academy training. Mr. Cose estimated approximately 70 percent of the USMS officers had prior law enforcement experience. The academy training encompassed criminal investigator training and USMS training.
Mr. Carpenter requested further details as to whether the USMS assisted the BLM or USFS in local law enforcement matters. In reply, Mr. Cose clarified the USMS was the clearing house for federal warrants. He added, in situations where the BLM had the authority to serve their own arrest warrants, the USMS would not get involved. He explained when fugitives with federal warrants were brought to stand trail, the USMS would act. These fugitives would be detained in USMS custody when brought before federal magistrate or district judges. He emphasized the USMS did not have the authority to assist other federal agencies in law enforcement activities.
Mr. Regan queried the USMS deputizing authority. In reply, Mr. Robinson stated the USMS did have the authority to deputize individuals outside the agency with authorization through the USMS national headquarters. The only situations where USMS deputization occurred were when local police assisted federal agents, as in Drug Enforcement raids. Deputization was only temporary.
In reply to Mr. Collins' concern, Mr. Cose replied the USMS was asking the legislature for the ability to detain fugitives with outstanding state warrants. Correspondence from the Director of the USMS had been sent to Chairman Sader requesting arresting authority for any felonies or gross misdemeanor crimes which occurred in the presence of USMS deputies, Exhibit D.
Mr. Bonaventura asked if suspects arrested by USMS officers would be charged with federal offenses. Mr. Robinson responded by stating offenders would be charged in federal court only if the crimes came under federal jurisdiction. Mr. Cose added fugitive warrants had been adjudicated previously by the courts. If question arose as to whether or not the crimes were under federal or state jurisdiction, the offenders would be arrested under federal authority. Mr. Bonaventura noted certain crimes, such as telemarketing offenses, wherein the state of Nevada was losing millions of dollars in potential revenues as no state agency had been constructed to handle the specific crimes. Mr. Robinson added the USMS did not have the specialization to investigate those types of crimes, nor did the USMS have the authority to arrest under those crimes which would come under the jurisdiction of the Federal Bureau of Investigations.
Mr. Bonaventura queried, of the twelve states which granted the USMS local arrest authority, how many Federal Bureau of Prisons (BoP) were there. Mr. Robinson responded there were several federal penal institutions across the United States. Federal prisoners from Nevada were transported to other states. In further response to Mr. Bonaventura's question, there were various categories of federal correctional institutions such as federal correctional institutions and metropolitan correctional centers. Mr. Cose interjected and informed the committee the penal institutions maintained and operated by the BoP had no correlation with the states in which the arresting authority laws had been enacted.
Mr. Cose continued and stated the USMS worked directly with the BoP. Once prisoners had been adjudicated, were found guilty, were in custody and designated for transport to the BoP, the USMS either transported the inmates to the prisons or the agency turned the prisoners over to BoP personnel, at which time the prisoners would be out of the USMS care, custody and control. He added the only other time the USMS would get involved with BoP inmates would be in instances where fugitives escaped. If the escapees had been ordered to be detained by the court, the USMS would detain them.
Mr. Haller expressed his concern over the enforcement of federal laws and asked if the USMS enforced federal laws. In response, Mr. Robinson stated during election processes where courts had decided there were irregularities, the USMS would be requested to oversee the processes. Otherwise, the USMS did not have jurisdictional authority in this area.
Mr. Anderson did not understand why the USMS should be granted local arresting authority when several other state law enforcement agencies were not granted that same authority. Mr. Robinson pointed out both state agencies and the USMS were specialized agencies.
In response to Mr. Anderson's additional concerns, Mr. Cose stated the intent of S.B. 2 was to provide the USMS the authority to initiate criminal investigations and assist the local law enforcement agencies.
Chairman Sader noted Mr. Edward Presley and Mr. Carver had testified on S.B. 2 during a previous hearing but were unable to complete their testimonies due to time restrictions.
Mr. Edward Presley, Information Specialist, NOR-DAK, expounded on his testimony presented during the earlier hearing. He informed the committee his primary function was to investigate federal officers who were suspected of operating outside the scope of their authority. A subsequent handout was presented, Exhibit E. He reiterated the problem with S.B. 2 was the ambiguity in the language in that it left openings for future misuse.
Mr. Presley addressed the issues raised by the USMS representatives. He alleged the USMS was requesting law enforcement authority which was presumed they already possessed. He felt there was a need for checks and balances within the bill. He suggested S.B. 2 be amended to parallel the laws pursuant to Article I, Section 8, Clause 17 of the United States Constitution.
Mr. Dick Carver, Nye County Commissioner, testified in support of S.B. 2 as amended. He directed attention to Chapter 2, Part II, Exhibit E, which displayed the evolution of jurisdiction and reserving jurisdictions to the state. He read one paragraph contained in Exhibit F: "It is a well settled matter of law that on those lands held by the federal government pursuant to Article 1, Section 8, Clause 17 of the U.S. Constitution, the Untied States has the undisputed power to exercise both jurisdiction and authority. It is equally clear that on those lands held by the federal government -- where the state has not yielded sovereignty -- jurisdiction and authority remain with the state".
With respect to federal law enforcement abuses within the state, Mr. Carver cited an example which occurred in Smokey Valley where a USFS Special Agent had made an arrest two years previous. Mr. Carver alleged a rancher had purchased a ranch in the area which had an existing cement ditch seven miles long. A pipeline had been inserted to replace the cement ditch. Adjudicated water rights and a permitted application for a right-of-way to the ranch had been evidenced. The project had been stopped by USFS agents, the owners had been arrested and the case was heard before a federal court judge. The USFS attorneys had asked the landowners to plea bargain. The owners plead not guilty. According to Mr. Carver, within two weeks the federal attorneys dropped the charges as they did not have the initial authority to make the arrest. Mr. Carver emphasized the need to maintain arresting powers within the state jurisdiction.
As Mr. Anderson understood, the proposed amendment to S.B. 2 would restrict the FBI and Secret Service activities to only land acquired under Article I, Section 8 , Clause 17 of the United States Constitution. Mr. Carver confirmed Mr. Anderson's statement and added the proposed amendment would also restrict FBI and Secret Service activities within the state.
Mr. David Horton represented the Committee to Restore the Constitution. He testified in opposition to S.B. 2. He compared the difference between citizen arrest powers and peace officer arrest powers. According to Mr. Horton, the difference was citizen arrests could not be protected if the charges were ruled unfounded. The citizens arrest powers of the state would cover attempts to assist local law enforcement. He contended S.B. 2 was not required to effect this issue.
According to Mr. Horton, under Article 1, Section 8, Clause 17 of the United States Constitution, the proposed amendment did address areas which pertained to other agencies. In reference to the 1979 and 1981 legislative sessions, Mr. Horton felt S.B. 2 would undermine previous determinations which provided for expansion of the states concerns in regard to enforcing constitutional limitations referencing public lands. Mr. Horton felt it would be a prudent move to restrict federal law enforcement officers as it would bring the statutes closer to compliance with Article 1, Section 8, Clause 17 of the United States Constitution.
Mr. M. Douglas Miller, president, Nevada Miners and Prospectors Association, presented his concerns with federal law enforcement authority within the state and opposed S.B. 2. Mr. Miller presented a citizens petition opposing the passage of S.B. 2 as written, Exhibit G.
Ms. Juanita Cox, citizen, concurred with Mr. Presley's testimony and supported the proposed amendment to S.B. 2. According to Ms. Cox, the proposed amendment would preserve Article 1, Section 8, Clause 17 of the U.S. Constitution. She urged retention of state and constitutional rights.
Ms. Smith addressed Ms. Cox and directed her concern with Article 1, Section 8, Clause 17 of the U.S. Constitution. Ms. Smith reiterated what she understood Ms. Cox alluded to was the intent of S.B. 2 which would be to detain all federal persons to the areas of erection of forts, magazines, arsenals, dock yards and other needful buildings and would be the only jurisdiction federal personnel would have within the state. Ms. Cox confirmed the intent of the proposed amendment to S.B. 2.
Mr. Donald G. Strachan, Consulting Geologist, represented himself and testified in opposition to S.B. 2. He presented copies of his speaking agenda, Exhibit H. Mr. Strachan stated he was suspicious of federal motives in regard to the state. His concerns were directed to constitutional authority and the effect S.B. 2, if passed, would have on state sovereignty.
Mr. Strachan referenced three sections contained in Title 28 of the U.S. Code (U.S.C.) which comprised the authority granted to the USMS.
1) Title 28 U.S.C., Sec. 563, Oath of Office: I ..., do solemnly swear or affirm that I will faithfully execute all lawful precepts directed to the ... under the authority of the United States, make true returns, take only lawful fees, and in all things well and truly, and without malice or partiality, perform the duties of the office of ... during my continuance in office, so help me God."
Mr. Strachan noted there was no reference to the preservation, protection or defense of the United States Constitution.
2) Title 28 U.S.C., Section 569, the Powers and Duties Generally of the USMS and Supervision by the Attorney General: The United States Marshall of each district is the Marshal of the District Court and of the Court of Appeals when sitting in his district and of the Customs Court holding sessions in his district elsewhere than in the Southern and Eastern Districts of New York and may, in the discretion of the respective courts, be required to attend any session.
Title 28 U.S.C., Section 569, Subsection (b): The United States Marshals shall execute all lawful writs, processes and orders issued under the authority of the United States, including those of the courts and the government of the Canal Zone, and command all necessary assistance to execute their duties.
Title 28 U.S.C., Section 569, Subsection (c): The Attorney General shall supervise and direct the United States Marshals in the performance of public duties and accounting for public monies. Each Marshal shall report his official proceedings, receipts and disbursements and the condition of his office as the Attorney General directs.
Mr. Strachan noted Title 28 U.S.C., Section 569, Powers and Duties, could be broken down into two categories: 1) officers of federal courts; and 2) officers responsible for public monies. According to Mr. Strachan, the second category was interpreted by the courts, as noted in the notes contained in Title 28, U.S.C., as enforcement powers of the Internal Revenue Codes, therefore, the USMS was an enforcer of Internal Revenue codes, he alleged. According to Mr. Strachan, this was the USMS' primary duty under the notes in Title 28 U.S.C..
3) Title 28 U.S.C., Section 570, United States Marshals Power as Sheriff: A United States Marshal and his Deputies, in executing the laws of the United States within a state, may exercise the same powers which a sheriff of the state may exercise in executing the laws thereof.
Mr. Strachan asserted the term "powers as sheriff", without regard to the definitions, would assume the USMS already had the powers of the sheriff within a state. He alleged it did not make sense the USMS was asking for additional powers to arrest without warrant.
Mr. Strachan searched for the definitions for the terms "United States" and "states" and could not find these denotations under Title 28 U.S.C.. However, he maintained, as enforcers of the Internal Revenue codes, the definitions were located under Title 26 U.S.C., the Authority for the Internal Revenue Service in Performance of Their Duties.
Title 26 U.S.C., Section 3121 (e), Internal Revenue codes, the term "United States" was defined as the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa.
Title 26 U.S.C., Section 3121 (e) (1), the term "state" was defined as Commonwealth of Puerto Rico, Guam, the Virgin Islands, and American Samoa.
Mr. Strachan contended until 1959 and 1960, Hawaii and Alaska were included under the definition of "state" in Title 26 USC, Section 3121 (e) (1). After 1959 and 1960 Alaska and Hawaii were removed. Nevada was never included under the term "state" as defined under the power of sheriff for the USMS.
In brief, Mr. Strachan outlined the historical aspects of the sovereignty of Nevada. Mr. Strachan stated, in the early 1900s, there was a strong labor movement in the boomtown of Goldfield. Governor John Sparks, under the advisement of the mine operators in Goldfield, asked President Roosevelt for federal troops to act as federal police in Esmeralda County. Governor Sparks received the troops although President Roosevelt felt this was not right and appointed a commission to investigate the background of the Goldfield problem.
Mr. Strachan presented an excerpt from the Report of the Goldfield Commission: "There was absolutely no question that if the State of Nevada and the County of Esmeralda exercise the powers at their disposal they can maintain satisfactory order in Goldfied. That so far these authorities have done nothing but are relying upon federal aid, and their attitude now is expressly that of refusing to do anything and desiring to throw their own burdens upon the federal government for the maintenance of those elementary conditions for which they and only they are responsible." Mr. Strachan contended the state of Nevada was not to look to the federal government to maintain it's problems but should look to themselves to solve these internal difficulties.
Ms. Marilyn O'Connor, citizen, alleged she and her family had been the subject of two illegal searches and seizures by the federal government. She cited an excerpt in the case Connolly vs. the United States Department of Justice, C.A.Fed. 1985, 766 F.2d 507, Exhibit I. According to Ms. O'Connor, the Federal Circuit Court ruled: "Even if Deputy United States Marshal had reasonable grounds to believe that two men were tampering with motor vehicle and that they presented false identification and displayed weapon upon valid arrest in the absence of any federal law which classified either of those acts as felony or offense against United States Marshals, action in arresting two men constituted false arrest."
Ms. O'Connor submitted copies of the United States Codes and referenced Title 28 U.S.C., Judiciary and Judicial Procedure, Paragraph 561, United States Marshals Service, Subsections (a), (b); and Title 28 U.S.C., Judiciary and Judicial Procedure, Paragraph 564, Powers as Sheriff; and Title 28 U.S.C., Judiciary and Judicial Procedure, Paragraph 566, Powers and Duties, Subsection (c), (d), (e) (1), Exhibit I. Under Exhibit I, Ms. O'Connor referenced Chapter 203, Arrest and Commitment, Paragraph 3052, Powers of Marshals and Deputies as well as various historical and revision notes and decisions. Exhibit I also contained details of the case Connolly v. United States Department of Justice as contained in the Federal Reporter, 2d Series.
Mr. William U. Inman, self-employed exploration geologist, testified in opposition to S.B. 2. He presented suggestions and comments in reference to S.B. 2, Exhibit J. He stated his concern with the bill was the ambiguity with the language as it led to too much speculation.
Ms. Gayla Higgins, representing herself, testified in opposition to S.B. 2. She referenced Article 1, Section 18 of the Declaration of Rights of the Nevada Constitution and Amendment IV of the Bill of Rights to the United States Constitution which she maintained stated: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated and no warrant shall issue but on probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or persons and the thing or things to be seized". She concurred with the right for the USMS to utilize the citizens' arrest powers. She maintained the FBI and the Secret Service should not have arresting powers within the state of Nevada.
Mr. Cliff Gardner, citizen, testified in opposition to S.B. 2. He presented scenarios of what he felt were abuses conducted by federal officers fining local ranchers for making property improvement, referencing the BLM and USFS. He voiced his concern toward local law enforcement entities to maintain state jurisdictional order.
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens (NCCC) was opposed to passage of S.B. 2. According to Ms. Lusk, the NCCC was concerned with the continuing expansion of federal police powers into what they considered local matters.
Mr. Clifford Thompson, citizen, testified in opposition to S.B. 2.
There being no further testimonies to come before the committee, Chairman Sader closed the hearing on S.B. 2. He informed the committee vote would not be taken on S.B. 2 nor on A.B. 360 at this time.
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Chairman Sader presented a Bill Draft Request, BDR 14-913, from the Nevada Department of Motor Vehicles which would provide for administrative proceedings for forfeiture of property of less than $10,000.
ASSEMBLYMAN REGAN MOVED TO INTRODUCE BILL DRAFT REQUEST.
ASSEMBLYMAN ANDERSON SECONDED.
THE MOTION PASSED UNANIMOUSLY.
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Chairman Sader requested a committee vote on A.B. 361.
Mr. Anderson moved to amend A.B. 361 by removing the involvement of the district courts in marriage ceremonies and no limit on the number of marriages lower courts could conduct per year.
ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS.
ASSEMBLYMAN TOOMIN SECONDED TO THE MOTION.
Mr. Gibbons advised the committee, in-as-much as his wife was involved in the wedding chapel industry, there was a direct conflict with his participation on A.B. 361. It was his wish to abstain from any action or consideration given to the matter.
Mr. Carpenter felt the unlimited number of marriages municipal court judges could conduct would cause problems, as testified to earlier. He contended the limitation of five marriage ceremonies conducted per year was too little. Mr. Carpenter made a motion to amend the motion which would eliminate the limitation of five marriage ceremonies conducted per year and amend the limitation to 12 marriage ceremonies conducted per year.
Chairman Sader stated there was a motion on the floor to amend the main motion by restricting the number of marriage ceremonies municipal court judges could conduct per year to 12.
ASSEMBLYMAN CARPENTER MOVED TO AMEND THE MAIN MOTION.
ASSEMBLYMAN GREGORY SECONDED.
Chairman Sader opened the hearing for discussion on the amendment to the main motion.
Mr. Anderson did not feel there was a need to restrict the number of marriage ceremonies conducted per year.
Mr. Porter contended it was ludicrous municipal court judges were prohibited from conducting marriage ceremonies. He felt it was ridiculous to place a limitation on the number of marriage ceremonies conducted per year. He maintained there were no conflicts between the judges and the wedding industry. He stated he would vote against the motion to amend the main motion.
Mr. Gregory asserted A.B. 361 did not require amending to encompass an unlimited number of marriages conducted per year. He cautioned the prospect of judges appearing before the committee at a later time requesting payment for services rendered because they were doing numerous marriage ceremonies. Mr. Gregory contended a limitation of 12 marriage ceremonies conducted per year was reasonable.
Chairman Sader clarified the motion on A.B. 361 was to amend the main motion which would decrease from an unlimited ability to perform marriage ceremonies to a limitation of 12 marriage ceremonies allowed to be conducted per year.
Chairman Sader called for a roll call vote on A.B. 361.
THE MOTION TO AMEND THE MAIN MOTION FAILED. (ASSEMBLYMEN ANDERSON, COLLINS, HALLER, PETRAK, PORTER, SMITH AND TOOMIN VOTED AGAINST. ASSEMBLYMAN GIBBONS ABSTAINED.)
Chairman Sader clarified the main motion on A.B. 361 was to amend and do pass. He advised the committee the amendment would be to delete page 2, lines 43 and 44; and page 3, lines 1 and 2. He noted both deletions dealt with district court approval. Chairman Sader further clarified the present motion to A.B. 361 would amend the language contained in page 2, lines 41 and 42 and would delete the limitation of 5; and lines 47 and 48 where it appeared for municipal judges.
Chairman Sader called for a roll call vote on the motion to amend and do pass A.B. 361.
THE MOTION TO AMEND AND DO PASS PASSED UNANIMOUSLY. (ASSEMBLYMAN GIBBONS ABSTAINED)
Mr. Petrak was assigned to handle A.B. 361 on the Assembly floor.
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Chairman Sader reminded the committee vote would not be taken on A.B. 363 as the bill was being considered for additional language.
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 10:55 a.m.
RESPECTFULLY SUBMITTED BY:
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
March 25, 1993
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