MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 9, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:10 a.m., on Friday, April 9, 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 Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
OTHERS PRESENT:
Sharon Spangler, State of Nevada Employees' Association
Wendell Williams, Clark County Assembly District No. 6
Art Melders, Correctional Lieutenant, Lake's Crossing Ctr.
Richard Harjo, Supervisory Forensic Specialist, Lake's
Crossing Center
Dr. Carlos Brandenburg, Director of Forensic Services,
Lake's Crossing Center
Tom McNevin, President of the Nevada Corrections Ass'n.
Paula Treat, Peace Officer Research Association
Senator Ernie Adler, Capital Senatorial District
Following roll call, Chairman Sader opened the hearing on AB 312.
ASSEMBLY BILL 312: - Revises qualifications for issuance of gaming license or finding of suitability.
Opening testimony, Assemblyman Wendell Williams, Clark County Assembly District No. 6, told the committee one of Nevada's Congressional representatives in Washington, D.C. had requested the committee not consider AB 312 until a hearing on the same issue was held in Washington the following week. The Congressional representative thought information heard during that meeting would add clarity and understanding for the state Legislature. In response, Chairman Sader asked if the representative was in attendance. Mr. Williams said he was not but had made contact with Mr. Williams the day before the meeting. Chairman Sader suggested the individual who wished to have the bill held should have contacted the Chairman so appropriate notification could be made to others wishing to testify. Both Jim Avance, representing the Cardivan Company and William Bible, Chairman of the Gaming Control Board, agreed, however, to testify when the bill was rescheduled.
SENATE BILL 89 - Confers powers of peace officers upon certain employees of mental hygiene and mental retardation division of department of human resources.
Sharon Spangler, representing the State of Nevada Employees' Association, explained SB 89 would provide peace officer status to forensic specialists at the Lake's Crossing facility in Sparks, Nevada. She pointed out suspected felons were incarcerated at the facility awaiting evaluation to determine mental sanity before going to trial. Because Lake's Crossing was part of the Department of Human Resources rather than the Department of Prisons, the forensic specialists did not have peace officer powers even though they performed the same work as forensic specialists at the prison.
Art Melders, Correctional Lieutenant for Lake's Crossing Center, came forward to run a video (Exhibit C) which he believed would set the stage and justify his support of the bill. (Exhibit C can be viewed in the Legislative Counsel Bureau Research Library.) In response to Chairman Sader's question, Mr. Melders said the video tape was prepared in 1988.
In response, to Chairman Sader's question regarding how many inmates were currently incarcerated at Lake's Crossing, Mr. Melders said they currently had 32, which was a drop from the usual 38 to 39. The facility was designed for 36 beds. Mr. Melders indicated a steadily rising population because law enforcement seemed to have more and more people they wished to have evaluated.
Continuing, Mr. Melders said Lake's Crossing Center was a maximum security facility for the criminal offender. He brought attention to Exhibit D which showed a list of crimes, the number of people incarcerated for each crime and their county of origin.
Testifying to the number of attempted escapes, Mr. Melders told the committee the role of the forensic specialist would be greatly aided in dealing with the type of person incarcerated at the facility. If SB 89 was not passed, Mr. Melders did not believe there would be a mandate to continue the POST requirement (Peace Officers Standards Training).
Chairman Sader asked Mr. Melders to explain what peace officer status would accomplish. Mr. Melders responded they wished to be equal with forensic specialists and correctional officers in the same job class within the Department of Prisons. He said his authority was frequently questioned when he had to either intervene in an attempted escape, or when apprehending escapees and transporting prisoners throughout the state. Chairman Sader said he remained unclear how peace officer status would increase a person's effectiveness.
As to the subject of firearms, Mr. Melders agreed they neither carried firearms inside the facility, nor was this the intent of the bill. Historically, Mr. Melders added, they had never used firearms when transporting individuals throughout the state, nor did they see a need for this.
Specifically, Mr. Gibbons asked what the forensic specialist's duties were. Richard Harjo, Supervisory Forensic Specialist at Lake's Crossing, said the forensic specialist's duties were unique in that one person did the duties of two individuals: 1) clinical training was required to understand mental health problems and the identification thereof; and 2) POST certification was required to identify possible problem areas in dealing with escapees. Mr. Gibbons also asked how many of the four non-POST trained employees on the staff were forensic specialists and how many were correctional officers. Mr. Harjo responded all four were forensic specialists. He added 60 to 70 percent of their working day was taken up by security duty.
Responding to a question from Ms. Smith, Mr. Melders said the Department of Prisons had forensic specialists as well as correctional officers. Ms. Smith wanted to know how the forensic specialist's duties differed from the duties of the correctional officers. Mr. Melders replied the forensic specialists at Lake's Crossing did the same job as correctional officers in the prison in providing security and working with the individuals.
Dr. Carlos Brandenburg, Director of Forensic Services at Lake's Crossing and also representing the Division of Mental Health/Mental Retardation, stated he was neither opposed or in favor of SB 89 -- he was merely there to provide answers to any questions which might arise.
Mr. Gibbons asked if peace officer status was awarded to the forensic specialist employees, whether they would receive any state benefits they were not presently receiving. In response, Dr. Brandenburg said, yes, as peace officers they would be eligible for early retirement. Mr. Gibbons noted the bill did not indicate a fiscal impact.
How many people would this affect, Ms. Smith asked. Presently, Dr. Brandenburg replied, it would affect 22 forensic specialists, 3 senior correctional officers and 1 correctional lieutenant. He also believed the new budget would request 2 additional forensic specialists, making it a total of 26.
In response to Mr. Carpenter's question, Dr. Brandenburg stated none of the present officers were armed. Noting Lake's Crossing as being within the Department of Health and Human Resources, he said in many states a forensic facility such as Lake's Crossing would be within the Department of Corrections. The only way any kind of restraint could be used upon a prisoner would be to get a physician's order pertaining to corrections; and if there was a riot or other kind of trouble at the facility, the Sparks Police Department would have to be called in.
Mr. Anderson questioned whether the Lake's Crossing forensic specialists would have peace officer status if the facility was part of the Department of Prisons rather than the Department of Human Resources. Dr. Brandenburg said they would have peace officer status if the facility was under the Department of Prisons. Indeed, during one session of the Legislature there had been a proposal to make it part of the Department of Prisons but the measure had not passed. At that time, Dr. Brandenburg said, the Department of Prisons had no psychiatric units and saw Lake's Crossing as a facility to provide psychiatric services to the inmates. The Department of Prisons presently had its own psychiatric unit but prisoners were still referred to Lake's Crossing.
Also supporting SB 89, Tom McNevin, President of the Nevada Corrections Association, told the committee he concurred with the testimony presented. A copy of an amendment, Exhibit E, was submitted which added the forensic specialists at the Nevada Department of Prisons to the list of statutorily defined peace officers. Mr. McNevin said the forensic specialists in the Department of Prisons were not statutorily defined as peace officers.
Mr. McNevin submitted Exhibit F, which was Department of Personnel Class Specifications describing job descriptions and qualifications for Correctional Officers and Forensic Specialists.
Chairman Sader observed the testimony indicated whenever transporting someone incarcerated at Lake's Crossing, the correctional officer should be armed. He asked Mr. Melders if it was his opinion the officer should not be armed. Ultimately, Mr. Melders thought it only made sense to have those officers armed, but this was not his main concern or the primary purpose of the bill.
Paula Treat, representing the Peace Officer Research Association of Nevada (PORAN), mentioned the long history of the issue of peace officer status and stated PORAN would oppose SB 89 as it was not felt the forensic specialists at Lake's Crossing needed full peace officer powers. If reorganization placed the facility under corrections, she acknowledged she would be unable to oppose this, but presently PORAN would continue to oppose the bill.
Mr. Toomin asked Ms. Treat to explain PORAN's opposition. In response, Ms. Treat opined there was already a proliferation of organizations having peace officer status. If a facility was not committed to a 24-hour mission to protect and serve people it was not necessary for the officers to have full peace officer status. Mr. Toomin observed the Lake's Crossing forensic specialists appeared to be "protecting and serving the public." Referring to the list of those incarcerated at Lake's Crossing, he pointed out these were felons, not necessarily mentally deficient. Ms. Treat maintained the Lake's Crossing facility had the ability to call in law enforcement to transport felons from one facility to another.
Although Ms. Treat acknowledged Lake's Crossing was a 24-hour facility, she pointed out for Ms. Smith that when peace officer powers were granted to an officer, the officer had that status 24-hours a day; and there had been abuses of the peace officer powers by certain individuals in the past. Ms. Smith was not convinced the forensic specialists at Lake's Crossing did not both qualify and have a need for peace officer powers.
When questioned by Mr. Bonaventura as to limited peace officer status, Ms. Treat said she did not think PORAN would oppose very limited powers on the job for the forensic specialists at Lake's Crossing. After further discussion, Ms. Treat said she would have to confer with PORAN but she thought they would support some level of peace officer status in the area of protection.
Clarifying, Sharon Spangler, indicated the Lake's Crossing forensic specialists were only seeking Category III Peace Officer Status which would give them peace officer powers on the job, and in no way would grant the power to carry any kind of weapon.
SENATE BILL 191 -Provides that imprisonment is not mandatory for driving without driver's license after expiration of period of suspension, revocation or restriction of license.
Senator Ernie Adler, representing the Capital Senatorial District, related the genesis of SB 191. An Attorney General's Opinion in 1992 had stated if someone's driver's license was suspended, revoked or restricted, a 30-day jail term was mandated for the offender. Some confusion had come about regarding the period of time between the end of the suspension and when the individual went to the Department of Motor Vehicles and retrieved his license. The Judges' Association had unanimously voted to seek statutory clarification stating if a person was driving without a license after the suspension period had passed there was not an automatic 30-day sentence.
Senator Adler remarked on the Senate side the bill was supported by the District Attorneys' Association, the defense bar and Mothers Against Drunk Drivers. The way the statute had been interpreted by the Attorney General's Office was not the intent of the bill.
Chairman Sader noted the law had originally been passed in 1983 as part of the DUI package. The intent at the time was to create a mandatory sentence if a person was driving on a suspended license; but it had not been anticipated an individual would have a period of suspension lapse and thereafter still be prosecuted on a mandatory sentence basis. He opined SB 191 clarified the original legislative intent.
With no further testimony to be heard, Chairman Sader asked for a motion on SB 191.
ASSEMBLYMAN GIBBONS MOVED TO DO PASS SENATE BILL 191.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Gibbons was asked to present SB 191 on the floor of the Assembly.
Chairman Sader asked the committee to also take action on SB 89.
SENATE BILL 89 - Confers powers of peace officers upon certain employees of mental hygiene and mental retardation division of department of human resources.
ASSEMBLYMAN BONAVENTURA MOVED TO DO PASS SENATE BILL 89.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Following statements made by committee members as to their opposition or support of the bill, Chairman Sader called for a roll call vote.
THE MOTION FAILED. (ASSEMBLYMEN BONAVENTURA, COLLINS AND SADER VOTED YES, ALL OTHERS VOTED NO.)
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ASSEMBLYMAN PORTER MOVED TO INDEFINITELY POSTPONE SENATE BILL 89.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN BONAVENTURA, COLLINS, GIBBONS, TOOMIN AND SADER VOTED NO, ALL OTHERS VOTED YES.)
Opening a work session, Chairman Sader asked for a motion on Senate Bill 75.
SENATE BILL 75 - Requires division of child and family services of department of human resources to take certain actions if powers and duties relating to investigation of prospective adoptive home are assigned to division.
ASSEMBLYMAN GIBBONS MOVED TO DO PASS SENATE BILL 75.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Toomin was asked to handle SB 75 on the floor of the Assembly.
SENATE BILL 226 -Expands provision concerning circumstances under which state may take unclaimed property held by intermediary in another state.
ASSEMBLYMAN HALLER MOVED TO DO PASS SENATE BILL 226.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Haller was asked to handle SB 226 on the floor of the Assembly.
ASSEMBLY BILL 325 - Makes various changes to procedures for summary eviction of tenant.
Reviewing, Chairman Sader said AB 325 had been heavily lobbied both before and after testimony. He said he had told both sides either the bill would die with a motion during the hearing or it would be placed in subcommittee to consider amendments, depending on the wishes of the committee. Chairman Sader said he had perceived there might be enough votes in committee to kill the bill in any form, regardless of whether there was a subcommittee; and under those circumstances he did not think it fair for a subcommittee to work on it only to see the bill die. Thus, he asked if there was a majority of the committee who wished to see the bill defeated.
Continuing to explain, Chairman Sader said it was agreed amendments would be needed. If committee members considered there was enough merit in the bill to send it to subcommittee, they should vote no on a motion to indefinitely postpone. Alternatively, if opinion prevailed the bill should not be considered, regardless of what the subcommittee might devise, they should vote to indefinitely postpone.
Speaking to the issue of conflict of interest, Chairman Sader noted this was a bill which probably touched a majority of the individual legislators. He cautioned the committee to consider whether they were individually affected differently than the class of people who would be affected.
Brief discussion followed.
ASSEMBLYMAN REGAN MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 325.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
Clarifying, Chairman Sader said if the motion failed, he would place the bill in subcommittee.
Ms. Smith observed testimony had indicated problems on both sides of the issue. Although she said she could not support the bill as it was currently written, she opined the members of the Legislature had been elected to deal with difficult issues, and they should not just ignore or let the issue die at this point in time.
An opposite stance was taken by Mr. Schneider. He remarked on the burden which had been placed on the city and county housing authorities; and noted the representatives of the housing authorities had opposed the bill after considering it from their standpoint and from the standpoint of the private sector.
Committee members made statements indicating their opposition or support of the bill.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON, COLLINS, HALLER, PORTER, SCHERER AND SMITH VOTED NO, ALL OTHERS VOTED YES.)
ASSEMBLY BILL 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.
In reviewing the bill Chairman Sader recalled the bill dealt with DUI laws on mandatory imprisonment and had been requested by the Department of Prisons. Testimony had been heard from victims groups and from the district attorneys.
Mr. Porter reminded committee members when they first heard the bill, District Attorney Dorothy Nash Holmes, Washoe County District Attorney, had taken a position which he thought was misinterpreting the intention of legislation in the 1989 session. Mr. Porter brought attention to Exhibit G, two messages from Judge Lehman (prime sponsor of the bill) interpreting and responding to District Attorney Holmes testimony. Mr. Porter discussed the contents of the Exhibit.
Commenting, Chairman Sader indicated he was not persuaded by the prison representatives a fundamental change in the DUI law should be made. The substantive issues raised by the District Attorney and MADD groups centered around justification for the bill altogether. Chairman Sader observed the law had not been greatly used by northern Nevada judges and perhaps this accounted for the District Attorney's opinion it did not serve a useful purpose, although it had apparently been successfully used by some judges in Clark County, as was indicated by Judge Lehman. Chairman Sader said he would entertain a motion to indefinitely postpone the bill.
ASSEMBLYMAN PORTER MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 360.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL 73 - Provides for reporting and punishment of abuse of patients.
Reviewing, Chairman Sader noted AB 73 had been in a subcommittee chaired by Mr. Gibbons. Mr. Gibbons submitted Exhibit H, an amendment designed by the subcommittee, and went on to describe material gathered by the Research Analyst, Denise Miller. Ms. Miller's research indicated the differences between the child abuse statutes, the elder abuse statutes, the proposed patient abuse statute (the subject of AB 73) and those statutes dealing with mental health and retardation which also fell within the guidelines.
Mr. Gibbons explained there were two courses considered by the subcommittee. One was to create a similar statute for patient abuse definitions and reporting requirements as those of child abuse and/or elder abuse; or to incorporate the appropriate language into already existing statutes rather than creating new law.
Explaining the need for the law, Mr. Gibbons explained that under Medicaid the federal government was now requiring patient abuse fraud investigation and/or prosecution by the Attorney General's Office. Therefore, a great attempt had been made by the subcommittee to resolve the problem.
Inasmuch as the original language of AB 73 could not be resolved amicably with any of the industry people affected by it, the subcommittee had developed the amendment shown in Exhibit H. This essentially gutted the essence of AB 73 and replaced it with a new concept, i.e., a criminal negligence statute. All sections, 1-22 of AB 73, would be deleted. Mr. Gibbons acknowledged the amendment was not "perfect." However, with certain minor amendments he believed it could be made workable. Mr. Gibbons continued with a discussion and explanation of amendments which needed to be made to the amendment.
In summary, Mr. Gibbons remarked what the committee was looking at was the results of two months of work, negotiations and compromise between members of the industry and the Attorney General's Office in attempting to get the bill into some reasonable working shape.
Chairman Sader suggested the committee study the amended bill before taking any action; and he asked Mr. Gibbons to prepare a written report of the new amendments he thought were needed. Mr. Gibbons also suggested after the new amendments were applied there should be a hearing in which testimony would again be taken. Chairman Sader agreed it needed to be brought back to the committee at a later time for hearing.
ASSEMBLYMAN GIBBONS MOVED TO AMEND ASSEMBLY BILL 73 AND REREFER IT TO THE JUDICIARY COMMITTEE.
ASSEMBLYWOMAN SMITH SECONDED THE MOTION.
Mr. Haller took issue with the word "inattention" on page 1, paragraph 1, subsection (d). Chairman Sader suggested this issue should be addressed when the committee later heard the amended bill.
Mr. Porter questioned language in paragraph 1, subsections (b) and (c), which had tort concepts in a criminal context. He and Mr. Gibbons discussed the "reasonable man" standard, and language in subsection (c) which implied "foreseeability." This went to causation which was also a tort concept, Mr. Porter maintained. In response, Mr. Gibbons argued when they went to a criminal negligence statute the result was a body of law which fit somewhere between criminal law and civil law, making for a mixed match of definition not fitting perfectly into the criminal statutes nor perfectly into tort law. Both Mr. Porter and Mr. Gibbons agreed subsections (b) and (c) would have to be proved "beyond a reasonable doubt."
The language on page 2, paragraph 3, subsection (a) was also questioned by Mr. Porter regarding treatment by prayer or other spiritual means. He asked Mr. Gibbons what he envisioned being "an implied objection," as was expressed on the last line of subsection (a). In response, Mr. Gibbons said this would be the living will situation wherein a patient had an implied or expressed objection to any kind of treatment or care. This legal point was discussed between Mr. Porter and Mr. Gibbons.
THE MOTION TO AMEND AND REREFER CARRIED UNANIMOUSLY.
Chairman Sader asked Mr. Gibbons to obtain the amendment and get it to him so it could be introduced on the floor.
ASSEMBLY BILL 327 - Requires fee for chemical analysis of blood, urine, breath or other bodily substance be collected from certain defendants before or at same time that any fine is collected.
ASSEMBLY BILL 446 - Requires fee for analysis of controlled substance be collected from certain defendants before or at same time that any fine is collected.
Chairman Sader reviewed AB 327 and reminded committee members the bill had originally been amended and passed. The amendment deleted references to excess funds going to the court, and instead directed the funds to the general fund. The reason the bill was brought back to the committee, he said, was because AB 446 dealt with exactly the same concept for drug statutes. It provided the chemical analysis fee would be required to be imposed by the court and further, directed the court received the excess. Thus, it was the same issue and the same testimony as previously heard applied equally in AB 327 and AB 446. He suggested the language should be amended into AB 327, eliminating a hearing and processing AB 446. Chairman Sader called for a motion to reconsider AB 327 and thereafter to indefinitely postpone AB 446.
ASSEMBLYMAN TOOMIN MOVED TO RECONSIDER ASSEMBLY BILL 327.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION TO RECONSIDER CARRIED UNANIMOUSLY.
Since the previous motion on AB 327 had been to amend and do pass, Chairman Sader explained they now needed a motion to further amend the bill to include the same concepts as set forth in the drug statutes proposed in Assembly Bill 446.
ASSEMBLYMAN TOOMIN MOVED TO FURTHER AMEND AND DO PASS ASSEMBLY BILL 327 BY INCLUDING THE CONCEPTS DEVELOPED IN ASSEMBLY BILL 446.
ASSEMBLYWOMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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ASSEMBLYMAN GIBBONS MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 446.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL 389 - Makes various changes related to procedures for determining percentage of alcohol in person's blood, urine or breath.
In review, Chairman Sader noted this was a bill dealing with DUI procedures. He said the bill would be held for testimony during a work session April 15, 1993.
ASSEMBLY BILL 388 - Makes various changes to provisions governing administrative assessments for misdemeanors.
This bill had been requested by the sheriffs and chiefs, Chairman Sader related. He brought attention to a revision which had come from testimony given by Washoe County. Washoe County had indicated agreement with the bill only if the same changes were made to the language which had been made in Assembly Bill 55 (dealing with assessments). Revenues from the assessments would be directed to the POST academy, thereby increasing the general fund by $84,000 the first year and $40,000 the second year.
ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS ASSEMBLY BILL 388.
ASSEMBLYWOMAN SMITH SECONDED THE MOTION.
Mr. Anderson suggested an amendment which would split the revenue 50/50. Mr. Sader was unwilling to further fund the Supreme Court; however, Mr. Anderson was eager to see the bill progress and he stood by his wish to amend the bill.
ASSEMBLYMAN ANDERSON MOVED TO AMEND ASSEMBLY BILL 388 TO REQUIRE A 50/50 PERCENT DIVISION OF ASSESSMENT FEES.
THE MOTION DIED FOR LACK OF A SECOND.
With no further discussion forthcoming, a vote was taken on the motion to amend and do pass.
THE MOTION TO AMEND AND DO PASS ASSEMBLY BILL 388 CARRIED UNANIMOUSLY.
There being no further business, the meeting was adjourned at 10:05 a.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
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Assembly Committee on Judiciary
Date: April 9, 1993
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