MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 26, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:05 a.m., Friday, March 26, 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:
Mrs. Myrna T. Williams, Assembly District 10
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. William Maupin, Attorney at Law of Thorndal, Backus,
Maupin & Armstrong
Mr. Bradford Bodeau, Representative for Senator Glomb
Mr. John Sarb, Administrator of Division of Child and
Family Services
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens
OTHERS PRESENT (CON'D) :
Ms. Alicia Smally, National Association of Social Workers
Ms. Janine Hansen, Nevada Eagle Forum
Following roll call Chairman Sader opened the hearing on AB 195.
ASSEMBLY BILL 195 -
Eliminates period of limitation for commencement of wrongful death action by heir of deceased under certain circumstances.
Assemblyman Myrna T. Williams, District 10, testified as prime sponsor of AB 195. Mrs. Williams explained AB 195 was the result of meeting with families of murder victims. She explained by the time these families became aware of the impact and found out they had the option to go to civil court for assistance, the statute of limitations sometimes had run out. At the request of such families, Mrs. Williams agreed it was time to remove the statute of limitations in these circumstances where a murder victim was involved and allow these families the time necessary to go to civil court when they were emotionally better prepared to deal with the situation. Mrs. Williams checked with legal counsel and found there would be very little fiscal impact.
Mr. Sader stated limitations on civil actions were traditionally seen as a very important aspect of society's view that when there was a claim for a wrong against a citizen such civil actions should be considered in a timely fashion. In Nevada for most personal injury accidents the limitation was two years.
Mr. Sader asked Mrs. Williams how she justified state policy being changed so radically where a two-year statute of limitation would exist for substantial bodily harm actions while an unlimited right of actions would exist on wrongful death actions.
Mrs. Williams explained she was not an attorney, but after talking with several family members of murder victims, she ascertained two years was not sufficient for those families first to realize what their options were and second to utilize those options.
Mr. William Maupin, Attorney at Law, Thorndal, Backus, Maupin & Armstrong, testified in opposition to AB 195. Mr. Maupin was the past President of the Defense Trial Lawyers of Nevada. Mr. Maupin explained he was not totally against AB 195. Mr. Maupin said his association did not have any problems with this measure if it was restricted to man-endangering felonies such as murder or DUI with substantial bodily harm. The problem with the language in this bill was it was very general and the criminal liability was broad. He explained determination of criminal liability in a misdemeanor case inherently involved the issue of causation of death. He understood the intent of this bill was to maintain a fund for recovery of wrongful death victims of violent crime but because oftentimes the offender was incarcerated for a violent crime, he would not be able to stand and respond to a judgment for money damages. He stated this bill would adversely effect the ability of insurers to underwrite risks for ordinary civil cases where there was a traffic or a building code violation involved. He stressed the legislation should be specific to ensure the constitutionality of the measure.
Mr. Sader asked Mr. Maupin if the term "found responsible" on page 1, section 1, lines 6 and 7 meant both a guilty verdict and a no contest. Mr. Maupin understood it meant any conviction.
Mr. Sader wondered if "found responsible" meant something different than conviction. Mr. Maupin said he did not know how a person could be found responsible without being convicted. Mr. Sader agreed with Mr. Maupin's statement.
Mr. Sader summarized Mr. Maupin's position by stating AB 195 should be restricted to murder or other homicides. Mr. Maupin stated his organization's position was the bill should be restricted to first or second degree murder and driving under the influence of intoxicants which resulted in substantial bodily harm where there was a fatality. Mr. Maupin clarified if any lesser penalty such as voluntary or involuntary manslaughter was used, the issue of arguable insurance coverage would be a problem.
Ms. Smith asked Mr. Maupin if "without limitation" was acceptable or did the limitation period need to be increased and then capped. Mr. Maupin frankly stated limitation periods should not be eliminated on any civil action.
There being no further testimony, Mr. Sader closed the hearing on AB 195.
Mr. Sader was not in favor of the bill because he believed there was a need for a statute of limitations and there should be a very good reason to extend them. He felt there was not sufficient justification presented to extend them. He stated however, if the committee wished to process the bill suggestions were made to limit it to first and second degree murder and substantial bodily harm where there was a fatality. He also stated the term "found responsible" should be changed to "convicted".
ASSEMBLYMAN PORTER MOVED TO INDEFINITELY POSTPONE AB 195.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
Mr. Porter said Mr. Sader addressed the reasons for his motion. Mr. Collins opposed Mr. Porter's motion because he felt the bill could be amended. Ms. Smith agreed with Mr. Collins and said the bill could be amended so it would be legally workable.
Chairman Sader requested a roll call vote.
THE MOTION CARRIED.
ASSEMBLYMEN ANDERSON, BONAVENTURA, CARPENTER, GIBBONS, GREGORY, HALLER, PETRAK, PORTER, REGAN, SCHNEIDER AND SADER VOTED YES.
ASSEMBLYMEN COLLINS, SCHERER, SMITH AND TOOMIN VOTED NO.
Mr. Sader opened the hearing on SB 73, SB 77 and SB 80. He explained these bills were all the result of an interim study regarding adoption issues.
SENATE BILL 73 -
Authorizes acceptance of gifts and grants for production of booklet on adoption.
Mr. Bradford Bodeau, Representative of Senator Diana Glomb, Senatorial District 1, testified in support of SB 73. He provided written testimony for the committee which was prepared by Senator Glomb (Exhibit C). Mr. Bodeau explained the purpose of SB 73 was to afford private parties the opportunity to contribute funds to offset costs for the production of adoption booklets.
Mr. John Sarb, Administrator of the Division of Child and Family Services, spoke in support of SB 73. Mr. Sarb stated SB 73 was simply an effort to acquire funds to pay for the booklet his division produced. He presented the committee with a copy of the booklet and explained there were individuals who were willing to contribute for its production costs and a fund was needed to receive such money (Exhibit F).
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens, testified in support of SB 73. Ms. Lusk said this bill would speed up the process of adoption, improve the comfort level of the parents who give up a child to adoption as well as the parents who adopt a child. She said in general this bill would serve the citizens of this state well.
Ms. Alicia Smally, National Association of Social Workers, verbalized her support of SB 73.
Ms. Janine Hansen, Nevada Eagle Forum, testified in support of SB 73. Ms. Hansen provided the committee with a copy of the "National Committee For Adoption State Ranking of Adoption Option Index" (Exhibit G). She said Nevada was ranked as one of the lowest states in terms of adoptions. She stressed her organization was very pleased this information would be distributed in high schools and other areas where this information was needed.
There being no further testimony, Mr. Sader closed the hearing on SB 73.
ASSEMBLYMAN ANDERSON MOVED TO DO PASS SB 73.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
SENATE BILL 77 -
Permits natural and adoptive parents to choose whether and how much information to exchange.
Mr. Bodeau testified in support of SB 77. He supplied written testimony for the committee which was prepared by Senator Glomb (Exhibit D). Mr. Bodeau clarified the purpose of SB 77 was to allow birth and adoptive parents to choose by mutual consent the type of adoption and degree of disclosure.
Mr. John Sarb testified in support of SB 77. Mr. Sarb illuminated the purpose of SB 77 was to give the same opportunity for agency adoptions which presently existed for specific adoptions. The bill allowed the opportunity for the birth parents and the adoptive parents to know each other and share identifying information about each other. Mr. Sarb expressed this arrangement had to be by mutual consent.
Mr. Sader asked Mr. Sarb if SB 77 appeared to be almost identical to AB 45. Mr. Sader said AB 45 passed earlier in the session but if SB 77 passed then AB 45 would no longer be processed by the Senate. Mr. Sarb confirmed Mr. Sader's comments.
Mr. Toomin pinpointed a conflict between SB 77 and AB 45.
He stated in SB 77 lines 10 and 11 the language said "by mutual consent" while the term "mutual consent" did not appear in AB 45 section 1, subsection (c) lines 8,9 and 10 where the language merely said "have knowledge of each other."
Mr. Sader requested Mr. Sarb to justify the distinction between SB 77 and AB 45 and clarify why SB 77 had the superior language.
Mr. Sarb replied it was very important mutual consent was included in the process.
Mr. Anderson disagreed with Mr. Sarb because he felt AB 45 had the stronger opportunity to determine what information initially would be in the form and thereafter information would be by mutual consent.
Ms. Smith disagreed with Mr. Anderson's viewpoint because AB 45 did not set what information was to be disclosed but instead it said to establish the procedure to be used in placement.
Mr. Toomin strongly disagreed with Mr. Sarb regarding the issue of mutual consent. Mr. Toomin found out within the last ten years he was an adopted child and he resented the fact he was not told of his adoption. Mr. Toomin disagreed with Mr. Sarb and felt it was important both sets of parents knew about each other for the good of the child. Mr. Toomin said the way he interpreted SB 77 if one of these sets of parents did not agree then there would be no sharing of information. Mr. Sarb said Mr. Toomin's comment was correct. Mr. Sarb stated further, sharing information face to face was not currently permitted for agency adoptions but background information for medical purposes about the birth parents was available to the adoptive parents under current law. Mr. Toomin asked Mr. Sarb if current law required the parent or parents who gave up their child to adoption to give the Division of Child and Family Services information if they did not want to. Mr. Sarb said he did not know if the law required parents to give his agency such information.
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens, spoke in favor of SB 77. Ms. Lusk again said this bill would speed up the process of adoption, improve the comfort level of the parents who gave up a child to adoption as well as the parents who adopted a child. She said in general this bill would serve the citizens of this state well.
Ms. Alicia Smally, National Association of Social Workers, announced her support of SB 77.
Ms. Janine Hansen, Nevada Eagle Forum, testified in support of SB 77. She stated the National Committee On Adoption (NCOA) had made in their national adoption facts book very clear they were concerned about maintaining the option of confidentiality for the birth parents and other people involved in the adoption. NCOA felt if the people were not guaranteed the option of confidentiality they might make other choices in order to maintain their confidentiality. Ms. Hansen stated NCOA favored the registration concept where mutual consent of both parties was registered and both parties determined what information was to be shared. NCOA felt this was the best way to protect the confidentiality of individuals.
There being no further testimony, Mr. Sader closed the hearing on SB 77.
Mr. Sader explained, after the committee passed AB 45, he became aware of SB 77 on the Senate side. Senator Glomb spoke to Mr. Sader regarding SB 77 because it was a part of the package which came out of the interim committee study conducted by the Committee on Human Resources and Facilities on adoption issues and out of deference to those legislators who worked on this interim committee she requested the Senate bills be processed. Mr. Sader explained he would comply with Senator Glomb's request the Senate no longer process AB 45, however he was not aware SB 77 had slightly different language.
Ms. Smith commented if SB 77 were passed, the word "rules" on page 2, line 2 should be deleted and replaced with the word "regulations" so the language would conform to the wording on page 2, line 2 of AB 45. Mr. Sader said Mr. Gibbons raised the same issue. Mr. Sader agreed with Ms. Smith's amendment and suggested it be incorporated into SB 77.
ASSEMBLYMAN SMITH MOVED TO AMEND AND DO PASS SB 77.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Scherer asked Mr. Sarb if there was a need to make any additional language changes to protect the confidentiality of the birth parents when medical information was needed by adoptive parents in light of the mutual consent language in this bill. Mr. Sarb explained the existing statute and language in NRS 127 covered the fact his agency shared such information. He stated the intent of SB 77 was to give his agency one more option and it would not change the practices of the other provisions in NRS 127.
THE MOTION CARRIED.
ASSEMBLYMAN TOOMIN OPPOSED THE MOTION.
SENATE BILL 80 -
Allows licensed child-placing agency to investigate home where child is to be placed for adoption.
Mr. Bradford spoke in support of SB 80. He provided written testimony for the committee which was prepared by Senator Glomb (Exhibit E). Mr. Bodeau discussed the intent of SB 80 was to allow the Division of Child and Family Services to focus its attention on placement of special needs children.
Mr. Sarb testified in favor of SB 80. He explained SB 80 allowed the Division of Child and Family Services to assign other licensed child placement agencies the ability to do a home study on prospective adoptive families. He revealed if the Division of Child and Family Services gave other child placement agencies the authority to do home studies, it would allow his division more time to work on special needs adoptions.
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens, promoted SB 80. Ms. Lusk again said this bill would speed up the process of adoption, improve the comfort level of the parents who gave up a child to adoption as well as the parents who adopted a child. She said in general this bill would serve the citizens of this state well.
Ms. Alicia Smally, National Association of Social Workers, verbalized her support of SB 80.
There being no further testimony, Chairman Sader closed the hearing on SB 80.
ASSEMBLYMAN ANDERSON MOVED TO DO PASS SB 80.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL 199 -
Creates crimes of stalking and aggravated stalking.
Mr. Sader presented the suggested amendment proposed by the District Attorney's Association in conjunction with the Trial Lawyers Association (Exhibit H). Mr. Gregory agreed with the proposed amendment.
ASSEMBLYMAN GREGORY MOVED TO AMEND AND DO PASS AB 199.
ASSEMBLYMAN PORTER SECONDED THE MOTION.
Mr. Gibbons stated he understood due to the seriousness of a first-time offense of stalking charge, it was clear the committee as well as those witnesses who appeared before the committee was concerned about the minimum first-time offender being placed in custody for some period of time. Mr. Gibbons suggested inasmuch as the District Attorney's amendment considered only a minimum time in jail for subsequent offenses, the committee should consider a first-time offender had to serve a minimum time in jail. Mr. Gibbons suggested an amendment of sixty days in jail for a first-time offense misdemeanor charge.
ASSEMBLYMAN GIBBONS MOVED TO AMEND THE MOTION ON AB 199.
Mr. Sader clarified Mr. Gibbons was requesting a mandatory minimum of sixty days for a first offense of nonaggravated stalking.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
Corrected copy ************************************
Ms. Smith indicated previous testimony conveyed the message the only options were either to obtain help for these stalkers or keep them away. She referred to the stalker who was interviewed on TV and stated he knew it was wrong but nothing would stop him. She stressed making the first offense a misdemeanor was not going to solve the problem and counseling should be made a part of the sentence. She felt if counseling was not included, stalkers should be kept off the street and away from their victims. She emphasized taking a stronger, more direct approach and sixty days was not enough.
*****************************************
Mr. Anderson wanted treatment to be added to Mr. Gibbons' amendment of sixty days and give the judge discretion during that time to include counseling. Mr. Sader ruled Mr. Anderson's request out of line because an amendment regarding treatment should be addressed separately from this motion.
Mr. Porter opposed the motion on the mandatory minimum on a misdemeanor recommended by Mr. Gibbons. Mr. Porter said the judge had the discretion now to sentence a person to six months in prison if it was a heinous situation. Mr. Bonaventura agreed with Mr. Porter and stated the crime should be judged on a case-by-case basis.
Mr. Haller did not consider sixty days in jail a slap on the wrist.
Mr. Toomin stated, "Sometimes the stalker doesn't get a second chance, and I think we have to be very strong in our efforts to try to deter anybody from the crime of stalking. I don't think that sixty days is adequate either."
Mr. Petrak stated, "The real problem has been worked over throughout the entire nation. It is a real serious problem. We're messing around with it. For the person that stalks and is found guilty of stalking isn't there a possibility of giving him the maximum he's allowed if he is a first offense. Why don't we really stand up and fight on this."
Mr. Sader said he thought it was a mistake to mandate a minimum and he had several concerns. He stated the sixty day mandatory minimum was counterproductive and it had ramifications. First there was not any indication judges would fail to be very tough on stalkers. It might be on a case-by-case basis a person could be benefitted the most by treatment instead of incarceration, yet the judge's hands could be tied to incarceration if this mandatory minimum was adopted. He addressed another legal issue raised by mandatory minimums on a misdemeanor was whether or not a jury trial was required. Mr. Gregory agreed with Mr. Sader's comments and supported the original motion.
Mr. Scherer agreed with Mr. Porter's comments and concerns. Mr. Scherer said there were two offenses, stalking and aggravated stalking.
Mr. Sader asked for a roll call vote on the amendment to the motion.
THE MOTION TO AMEND THE MOTION FAILED.
ASSEMBLYMEN ANDERSON, BONAVENTURA, CARPENTER, COLLINS, GREGORY, HALLER, PETRAK, PORTER, REGAN, SCHERER, SCHNEIDER, SMITH, TOOMIN AND SADER VOTED NO.
ASSEMBLYMAN GIBBONS VOTED YES.
Mr. Collins suggested an amendment to AB 199 to address the issue of a counseling treatment program for stalking offenders.
Mr. Sader stated more hearings were necessary in order to make this determination and he suggested a companion bill should be proposed to address this aspect. Mr. Collins thought Mr. Sader's suggestion was acceptable.
Mr. Regan inquired how the problem of public and private investigators would be handled in view of the language found in section 1, line 3 of AB 199 where it stated "A person who, without lawful authority." Mr. Sader said this bill already had picketing and labor disputes incorporated in it. Mr. Sader did not have any preference.
Mr. Scherer said his preference was to exclude all of the exceptions since "without lawful authority" covered it. He stated, "If we got into the issue of excluding certain professions, then we would get into the issue of excluding all professions because otherwise the language would be interpreted against us." Mr. Sader stated Mr. Scherer had made a good point and he agreed there could be ramifications if any exclusions were inserted. The intent behind "without lawful authority" was, nevertheless to exclude activity like repossessions, private investigating, process serving and all types of press and media reporting, which were conducted persuant to "lawful authority." Inclusion of picketing by express reference should not be interpreted to exclude other activities conducted with "lawful authority."
THE ORIGINAL MOTION ON AB 199 CARRIED UNANIMOUSLY.
SENATE BILL 2 -
Provides United States marshal and his deputies certain authority to arrest persons without warrant.
ASSEMBLYMAN TOOMIN MOVED TO INDEFINITELY POSTPONE SB 2.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
There being no further business to come before the committee, the meeting was adjourned at 9:28 a.m.
RESPECTFULLY SUBMITTED:
CHANDRA PENDERLAND
Committee Secretary
??
Assembly Committee on Judiciary Corrected Copy ******
March 26, 1993
Page: 1