MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 21, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:07 a.m., April 21, 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:
Ms. Kay Zunino, Chief, Nevada Welfare Division, Child Support Enforcement Program
Mr. Gerald Weis, Nevada Attorney General's Office
Ms. Beverly J. Saucedo, Extradition Officer, Nevada Attorney General's Office
Ms. Anne Cathcart, Deputy Attorney General, Nevada Attorney General's Office
Sheriff Paul McGrath, Carson City Sheriff's Department
Ms. Lucille Lusk, Nevada Coalition of Conservative Citizens
After roll call, Chairman Sader called the meeting to order.
ASSEMBLY BILL NO. 492 Makes various changes relating to support for dependent children.
Ms. Kay Zunino, Chief, Nevada Welfare Division, Child Support Enforcement Program, testified in favor of passage of A.B. 492. She presented an outline of her testimonial titled "AB 492 Child Support Enforcement/Program Enhancements, Nevada State Welfare Division", Exhibit C, which suggested amending A.B. 492, Sections 1 through 9. A copy of the Federal Register, Volume 55, No. 158, dated August 15, 1990, was also presented under Exhibit C.
In reply to Mr. Sader's inquiry, Ms. Zunino said the District Attorney's Office and the Nevada State Welfare Division had the authority to attach workmen's compensation benefits for child support under NRS 31A.150. Private attorneys could attempt to attach workman's compensation benefits for child support under the authority of NRS 31A.330. Mr. Sader noted private attorneys could obtain wage assignments on workmen's compensation benefits after instituting private actions for support.
Mr. Porter asked how the existence of attorney/client privileges would hamper the Nevada Welfare Division's ability to petition for increases or decreases in benefits. Ms. Zunino replied representatives of the Nevada Welfare Division had requested an opinion from the Bar Association to determine whether a conflict of interest existed; this had not been forthcoming. The Attorney General's Office had determined there had not been a conflict and they represented the best interests of the state. The District Attorney's Office requested further clarification due to issues contained in the present statute.
According to Ms. Zunino, the issues contained in A.B. 492 were twofold. One problem lay with adjusting orders in cases where custodial parents had obtained the child custody orders and the non-custodial parents subsequently requested adjustments. The other problems experienced were in cases where child custody changed by private arrangement between the parents without amending the custody order.
Mr. Porter interjected and reiterated his previous inquiry. In reply, Ms. Zunino contended attorney/client privileges did not hamper the Attorney General's Office's ability to perform its duties. Ms. Zunino added the district attorneys maintained removing the provision under discusion would clarify the statute.
Mr. Gerald Weis, Deputy Attorney General, Nevada Attorney General's Office, testified on behalf of the Child Support Enforcement Program. He supported A.B. 492. He stated the district attorneys, particularly in Clark County, believed the provision gave rise due to attorney/client privileges between the district attorneys and the custodial parents.
At this point, Mr. Porter interjected and contended, as he understood the provisions to read, any communication between attorneys and their clients would not be privileged information. The only process by which testimonial privileges could presently be invoked would be by clients waiving them so attorneys would then be compelled to testify. The clients could waive privileges at any point.
Responding to Mr. Porter's concern, Mr. Weis stated the district attorneys maintained the provision in the statute created attorney/client relationships with the custodial parents or the obligees seeking support. Based on the district attorneys' contentions and the federal mandates of the Child Support Enforcement Office, attorney/client relationships should not exist. He alleged this was the reasoning behind the suggested provisions. The proposed amendment was presented for clarification purposes.
Mr. Porter referenced A.B. 492, Section 1, subsection 4, page 1, lines 21 through 23. In response, Mr. Weis focused on Section 1, subsection 3, lines 17 and 18 which read "the district attorney and his deputies do not represent the parent or the child in the performance of their duties". The basis of his concern was reconciliation of subsection 3 with subsection 4 in Section 1, which was under advisement for amendment or deletion. This provision provided for privileges between lawyers and clients or between the parents and attorneys. He asserted these two provisions were in conflict, particularly in light of the federal interpretation which stated district attorneys would not represent those parents seeking support. He added, the provisions were confusing as one proviso alleged attorneys did not represent the parents, whereas another provision asserted attorney/client privileges did exist.
Further discussion ensued between Mr. Porter and Mr. Weis relative to the subsequent issues.
Mr. Weis noted one reason for amending A.B. 492 had been contained in NRS 125B.145 which directed review orders be analyzed every three years. The issues pertained to situations where the District Attorney's Office represented custodial parents and had obtained privileged information. In these situations, noncustodial parents could also demand case reviews with district attorney representation. The district attorneys expressed concerns the privileged information could not be used and would automatically disqualify them from representing the noncustodial parents. This would hinder the three-year review of orders process.
Mr. Porter asked if the Clark County District Attorney's Office had ever conflicted itself out of representation, thereby hampering the department's ability to collect and evaluate orders every three years. In reply, Ms. Zunino stated this was not the case at the present time because the three-year review of orders had not been initiated in its entirity as it was a new, federally mandated statute.
In reply to Mr. Gibbons' concern, Ms. Zunino noted the department reviewed the adjustment of orders once every three years. The reviews were required to determine whether adjustments were appropriate in AFDC cases. District attorneys were required to provide reviews and adjustment services once every three years in non-AFDC cases at the request of the custodial or noncustodial parents.
Mr. Gibbons asked which provisions required amending to comply with federal mandates. Ms. Zunino replied the first proposed provision discussed required amending to adhere to federal mandates. The Family Support Act required reviews and adjustments when requested by either parent. A.B. 492, Section 8, addressed federal mandates where the Welfare Department would initiate immediate action to withhold wages.
Ms. Zunino added the wage withholding provisions should have been addressed during the Sixty-sixth Legislative Session but had not become state statute due to an oversight. According to Ms. Zunino, immediate withholding of wages applied to all Title IV-D cases. Child welfare cases were considered under Title IV-D although this had not been addressed in state statute. The Welfare Department had the ability to withhold wages. She maintained the "guardian ad litem" issues had been addressed because federal funds had not been available for the appointment of "guardian ad litems." Mr. Gibbons noted the issue discussed had not been a mandated provision but had been slated for amendment to address the lack of federal funding. Ms. Zunino stated the Welfare Department would continue to withhold wages under cases brought before the district attorneys but would not withhold wages in cases where private attorneys had requested action.
Mr. Gibbons addressed concern as to the reasoning behind amending A.B. 492, Section 2, subsection 2, lines 40 through 41, which would change mandatory language to permissive language. Ms. Zunino cited the provision in the bill which read "the enforcing authority may collect" which amended A.B. 492 from permissive to mandatory language. She added the Welfare Department could elect to charge service fees.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 492. He opened the hearing on A.B. 487.
ASSEMBLY BILL NO. 487 Requires filing of post- conviction petition for writ of habeas corpus in county where conviction occurred.
Ms. Ann Cathcart, Deputy Attorney General, Nevada Attorney General's Office, testified in favor of passage of A.B. 487. She noted the proposed amendments were technical and would cleanup the present language in the bill. She presented copies of her correspondence, dated April 20, 1993, which outlined the the proposed amendments, Exhibit D.
Ms. Cathcart pointed out two technical changes which needed to be altered in her correspondence, Exhibit D. Page 1, paragraph 4 of the letter should read as follows: However, NRS 34.735 (effective January 1, 1993) which should have taken these changes into account, omitted one change. Instruction 7 in this section states that "when the petition is fully completed, the original and one copy must be filed with the clerk of the state district court for the county in which you are...."
Ms. Cathcart stated Senate Joint Resolution No. 13 of the Sixty-sixth Legislative Session had been approved during the 1992 General Election. The change essentially unified the procedures by which prisoners could challenge their convictions. The challenges would not be direct appeals but petitions for writs of habeas corpus or petitions for post conviction relief, whereby the prisoners could claim they did not belong in prison.
Ms. Cathcart added, in the past, when prisoners filed for post conviction relief under Chapter 177, the petitions had been filed in the counties of conviction. Writs of habeas corpus would have been filed in the counties of incarceration. During the Sixty-sixth Legislative Session, amended provisions mandated petitions be filed in the counties of conviction. This resulted in expediency and made it more cost effective for the states and counties. The amended provisions placed the burden of the processes of the post conviction relief petitions on the counties with the best resources to maintain the records.
There being no further testimony to come before the committee, Acting Chairman Porter closed the hearing on A.B. 487. He opened the hearing on A.B. 489.
ASSEMBLY BILL NO. 489 Required attorney general to pay expenses to extradite person located outside United States.
Ms. Beverly Saucedo, Extradition Officer, Nevada Attorney General's Office, testified in favor of A.B. 489. She stated the purpose of the bill was to amend NRS 179.225 which addressed international extradition expenses, Exhibit E. The suggested amendments would allow the Attorney General to remit payment on expenses incurred during international extradition processes. This had never been specifically addressed in the Nevada Revised Statutes. As she understood, there would not be a fiscal impact as the result of the changes because the Nevada Attorney General's Office had always paid the international extradition expenses.
Mr. Porter asked how many territorial extraditions the Attorney General's Office conducted during FY 1992. Ms. Saucedo replied the office conducted three extraditions from the countries of Singapore, Canada and Mexico which cost the state of Nevada approximately $10,000. During FY 1991, the department extradited two individuals from England and Canada, with expenses to the state which totaled approximately $7,300. She noted there had not been any international extraditions as yet during FY 1993. Extradition expenditures were paid from the department's extradition fund. Ms. Saucedo maintained during FY 1992, the Attorney General's Office expended $670,000, $10,000 of which was international extradition expenditures. The Attorney General's Office was attempting to outline more stringent regulations to guarantee reimbursement.
Mr. Toomin asked if attempts had been made for restitution of extradition expenses from the apprehended fugitives. Ms. Saucedo noted the state did receive restitution from offenders as a condition of their probation. A small amount was collected from each probationer on a monthly basis. She stated, of the $607,000 expended on international extraditions, the restitution from the offenders amounted to $50,000.
There being no further business to come before the committee, Chairman Sader closed the hearing on A.B. 489. He opened the hearing on A.B. 472.
ASSEMBLY BILL NO. 472 Makes various changes relating to certain crimes committed in areas frequented by children.
Sheriff Paul McGrath, Carson City Sheriff's Department, testified in favor of A.B. 472. He noted Mr. Heller was the bill draft requester and had introduced A.B. 472 on behalf of the Carson City Sheriff's Department.
Sheriff McGrath alleged Carson City had experienced problems with merging gangs which also involved youths gathering in various locations frequented by children. The proposed bill had been modeled after a Minnesota statute which authorized safe zones and prohibited the carrying of concealed weapons or sale of illegal substances in areas where children congregated.
Sheriff McGrath noted the initial intent had been to address the issues in a Carson City ordinance. Because the counties of Clark and Washoe addressed similar interests in growing gang activities in their communities, it was suggested the issues be addressed in a statewide statute.
Sheriff McGrath noted A.B. 472 utilized the same provisions contained in the statute which addressed the sale of illegal substances, although this bill would apply to weapons. The statute would make it illegal to carry weapons within 1,000 feet of certain places. The fiscal note on the bill would entail the promotion, publication and printing of signs for designated safe zone areas.
In reply to Mr. Collins' concern, Sheriff McGrath stated the intent of A.B. 472 was to address gang activities which involved the bearing of concealed weapons. He added, Mills Park in Carson City was the driving motivation behind enacting the provisions.
Mr. Scherer believed there would be a conflict with A.B. 472, a dangerous knife bill. In the dangerous knife bill, the language had been changed to address situations where individuals would be engaged in other unlawful conduct or unlawful activities in unauthorized areas. Sheriff McGrath added he was willing to accommodate any changes the committee deemed appropriate in the proposed amendments. Mr. Scherer noted the issues were contained in Section 1.
Mr. Toomin addressed his concern with A.B. 472, Section 1, subsection 3 (c) which pertained to those individuals who had written permission from presidents or principals of educational institutions to carry weapons. He believed this provision was in direct conflict with NRS 202.350. Sheriff McGrath addressed Mr. Toomin's concern and noted the existing language related to security personnel. Mr. Toomin contended, according to state law, permits to carry weapons were required from law enforcement entities. He alleged written permission from educational institutions did not give individuals the right to carry concealed weapons. Sheriff McGrath noted the provisions pertained to public and private properties. Universities were private properties which where public law enforcement personnel did not have jurisdiction.
Mr. Anderson expressed his opinion on A.B. 472, Section 2, page 2, lines 42 and 43 which addressed areas where civic and cultural activities took place and youths would be most likely to congregate. He asked if the provisions would extend to other areas where youths might assemble such as senior proms, etc. Sheriff McGrath stated the provisions would apply only to specified areas, not to public areas or schools.
Mrs. Lucille Lusk, Nevada Coalition of Conservative Citizens testified in opposition to A.B. 472. She presented several concerns regarding the proposed provisions. She contended there were definable differences between harboring illegal substances and carrying firearms and other weapons. She alleged creating safe zones for drugs was workable as it was illegal to possess illegal substances. However, she continued, there were many legitimate reasons for individuals to possess firearms and weapons. For example, numchucks and trefoils could be recreational in nature when used in martial arts programs in recreational centers. Guns were often carried during gun club participation. By creating the safe zones to include recreational centers, the bill would create problems.
Ms. Lusk addressed A.B. 472, Section 1, subsection 3, (a) and (b), page 1, lines 18 and 19 which dealt with permission from universities or principals of schools. She contended, the language should cover recreational centers. She added the section did not deal with security guards, etc. The intent of the provision pertained to students enrolled in the ROTC programs where guns would be carried by the participants. The intent did not justify the carrying of concealed weapons by students. She noted there were instances where academic instruction justified the carrying of firearms.
Ms. Lusk addressed A.B. 472, Section 2, subsection 3, (b), page 2, line 39 which pertained to recreational centers and organizations where planned and organized athletic or civic cultural activities operated. She alleged this could encompass church activities where dances and other recreational programs for youths were conducted.
Ms. Lusk was opposed to the doubling of penalties under statute unless the committee could prove sentencing and current statutes was not adequate.
There being no further business to come before the committee, Chairman Sader closed the hearing on A.B. 472. The bill would be held for committee consideration at this time.
Chairman Sader requested committee member consideration on bills heard before the committee during preceding hearings.
ASSEMBLY BILL NO. 492 Makes various changes relating to support for dependent children.
Mr. Porter suggested to amend A.B. 492 by deleting the bracketed language contained in Section 1, page 1, subsection 4, lines 21 through 23, which would include deleting the subsection number "5." contained on line 24. He suggested deleting the language contained in A.B. 492, Section 1, page 2, line 4, subsection 7. The proposed changes would restore A.B. 492, Section 1 to the original language.
ASSEMBLYMAN PORTER MOVED AMEND AND DO PASS.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED BY THOSE PRESENT. (ASSEMBLYMEN TOOMIN, SMITH AND GIBBONS VOTED AGAINST)
Mr. Gregory was assigned A.B. 492 on the Assembly Floor.
ASSEMBLY BILL NO. 487 Requires filing of post-conviction petition for writ of habeas corpus in county where conviction occurred.
ASSEMBLYMAN ANDERSON MOVED DO PASS.
ASSEMBLYMAN PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Bonaventura was assigned A.B. 487 on the Assembly Floor.
ASSEMBLY BILL NO. 489 Requires attorney general to pay expenses to extradite person located outside United States.
ASSEMBLYMAN REGAN MOVED DO PASS.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Mr. Schneider was assigned A.B. 489 on the Assembly Floor.
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 9:15 a.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
April 21, 1993
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