MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      May 11, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:10 a.m., Tuesday, May 11, 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. Demise Miller, Research Analyst

 

OTHERS PRESENT:

 

      Mr. William Bible, State Gaming Control Board

      Mr. Edward Allen, Chief of the Electronic Division of the

        State Gaming Control Board

      Mr. Harvey Whittemore, Nevada Resort Association

      Ms. Paula Treat, Peace Officers Research Association of

        Nevada   

 

OTHERS PRESENT CONT'D:

 

      Detective Todd Shipley, President of the Peace Officers

        Research Association of Nevada

      Mr. Bob Gagnier, Executive Director of the State of Nevada

        Employee Association

      Mr. Douglas Dickerson, Representative of the City of

        Las Vegas

      Mr. Martin Wiener, Nevada Trial Lawyers Association

      Mr. Michael Specchio, Washoe County Public Defender

      Mr. James Jackson, Nevada State Public Defender

      Mr. Michael Pescetta, Nevada Appellate Post Conviction

        Project and Representative of Nevada Attorneys for

        Criminal Justice

      Mr. Kevin Higgins, Senior Deputy Attorney General's Office

      Ms. Dorothy Nash Holmes, Washoe County District Attorney's      Office

      Mr. Ben Graham, Clark County District Attorney's Office

      Mr. David Sarnowski, Chief of the Criminal Division of the

        Nevada Attorney General's Office

 

Following roll call, Mr. Sader mentioned a Nevada Association of Counties fee bill would be considered in work session on Thursday May 13th.

 

Mr. Sader opened the hearing on SB 242.

 

SENATE BILL 242 - First Reprint

 

      Makes various changes regarding the regulation of gaming.

 

SB 242 was the result of a recommendation from an interim study on gaming.

 

Mr. William Bible, State Gaming Control Board, testified in favor of SB 242.  Mr. Bible introduced Mr. Edward Allen, Chief of the Electronic Division of the State Gaming Control Board, to assist in his presentation.  Mr. Bible explained the first reprint of the bill section by section.  He explained Section 1 of the bill would bring transmission companies into regulatory jurisdiction. He explained a disseminator was an interface company or group which brought in signals from tracks to books within the state of Nevada and was governed by NRS Chapter 463.  Upon a recommendation of the Gaming Control Board Section 1 of the bill would allow the Commission to require a natural person or an entity providing services in connection with the transmission of live broadcasts, to file an application for finding of suitability.  He said it would give the Gaming Control Board regulatory jurisdiction in the event it felt it was necessary.

 

Mr. Bible reviewed and discussed the bill section by section.

 

Mr. Sader said he had read the bill and tracked the bill's provisions with the suggestions from the Study of Gaming an interim study (Exhibit C available in the research library).  He said primarily the bill consisted of clean up and updating provisions and he discerned there was no controversy.

 

Mr. Haller asked Mr. Bible regarding page 1, line 4 where it said "natural person" why he used the term.  Mr. Bible said it was used in a context similar to an entity, a corporation or anything of this nature.

 

Mr. Toomin asked Mr. Bible if there had been any irregularities prior to the proposed amending language with regard to the pari-mutuel wagering.  Mr. Bible told Mr. Toomin Section 1 of the bill allowed jurisdiction over transmission companies.  Over the years Nevada had used non-licensed entities instead of using Nevada licensed entities to provide transmission services.  Mr. Toomin believed the bill would give the Gaming Control Board a better way to regulate pari-mutuel systems.  Mr. Bible agreed.

 

In response to Mr. Toomin's request, Mr. Bible clarified the language on page 8, Section 13, subsection 2(b), lines 44 through 46.

 

Mr. Anderson asked Mr. Bible to clarify the differences between the original and first reprint of the bill, and asked specifically whether slot route operators were currently licensed or controlled by the Gaming Control Board.

 

Mr. Bible answered the proposed amendment in Section 3 was a bill drafter's amendment on lines 39 and 40.  This indicated a slot route employee would be required to have a work card.  The deleted language in Section 8 of the original draft was language Mr. James Avance, Cardivan, objected to when the bill was heard in the Senate.  Therefore, slot route operators would be licensed and would hold a non-restricted gaming license. 

 

Mr. Bonaventura did not believe the $500 fee set in Section 17 was high enough.  Mr. Bible said this was consistent with existing fees. 

Mr. Harvey Whittemore, Representive of Nevada Resort Association, spoke in favor of SB 242. 

There being no further testimony, Mr. Sader closed the hearing on SB 242.

 

ASSEMBLY BILL 575 -

 

      Consolidates provisions conferring powers of peace officer.

 

Ms. Paula Treat, Peace Officers Research Association of Nevada, spoke as the requesting agency on AB 575.  Ms. Treat introduced Detective Todd Shipley, President of the Peace Officers Research Association of Nevada, to assist in the presentation.  She explained the purpose of AB 575 was to consolidate, define and clarify who had peace officer powers.  She pointed out the bill drafter had not completed the project as her association had requested, and there were problems with the bill. 

 

Mr. Sader said the Peace Officers Research Association of Nevada, as the requestor of the bill, had no intention of changing any police officer status for anyone in the state of Nevada.  The only goal was to move them to a separate area of the statutes where they could be referenced together.  Mr. Sader asked Ms. Treat to provide the proposed amendments. 

 

Mr. Bob Gagnier, Executive Director of the State of Nevada Employee Association, explained his association was neither in support of or in opposition to AB 575, but rather was present to amend a provision which was current law.  He proposed on page 3, Section 9, subsection 3 to delete the obsolete term "watchmen" (Exhibit D).

 

Mr. Sader asked Mr. Gagnier to provide his amendment in written form.

 

Mr. Douglas Dickerson, representative of the City of Las Vegas, spoke in favor of AB 575.  Mr. Dickerson suggested in light of Ms. Treat's testimony he would be happy to give his agency's recommendations to the Peace Officers Research Association of Nevada if they were to make changes to the bill.

 

Mr. Sader asked Ms. Treat to obtain all of the suggested amendments and to provide the committee with a written amendment which would satisfy the intent of the bill.

 

ASSEMBLY BILL 576 -

 

      Revises penalties for certain violations concerning commodities.

 

Mr. Sader explained the committee had requested the bill as an off-shoot of testimony heard earlier in the Session indicating the need to lower the penalty and the time for violations concerning commodities.  Earlier testimony indicated such penalties were higher than other types of crimes of this category and they should be made consistent.

 

There being no further testimony, Chairman closed the hearing on AB 576.

 

ASSEMBLY BILL 585 -

 

      Revises certain provisions concerning discovery in criminal prosecutions.

 

Mr. Martin Wiener, Nevada Trial Lawyers' Association, testified as the requesting agency of AB 585.  Mr. Wiener was accompanied by Mr. Michael Specchio, Washoe County Public Defender. 

 

Mr. Wiener explained the purpose of AB 585 was to remove the prosecutor's discretion to pick and choose among defense attorneys as to which ones would be afforded an open file.  The Nevada Trial Lawyers' Association and the Defense Bar believed if there was nothing in the prosecution's files which would help the defendant, then the information should be delivered.  Conversely, if there was anything in the prosecution's files which did help a defendant, then fairness and Supreme Court decisions required the information to be delivered.  He told the committee prosecutors in almost every jurisdiction in Nevada were already afforded this open file policy and this was a recognition the open file policy worked.  He said the bill required all information except documents produced by the District Attorney or a prosecutor should be delivered to the defense.  He added as it stood currently, the prosecutor could refuse to deliver reports made by the police who investigated the crime.

 

Mr. Specchio was in full agreement with Mr. Wiener's testimony and had nothing further to add.

 

Mr. Sader asked Mr. Wiener if anything in the proposed amendment went beyond the current open file policy in Nevada if it was properly administered.

 

Mr. Wiener explained it did not exceed current practice but it codified the Brady vs. Maryland exculpatory information.  Although it would expand the statute, he believed it did not provide defense attorneys any more information than they would normally receive from a prosecutor who had an open file policy.

 

Mr. Sader asked Mr. Wiener if defense attorneys had to provide the same information as specified in this statute to the prosecution when it requested such information.  Mr. Wiener answered, "Yes," it meant NRS 174.255 would have to be complied with as part of reciprocity.

 

Mr. Sader asked Mr. Wiener whether reciprocal discovery was provided if there was compliance with NRS 174.255 and an open file was provided to the extent necessary under law.  Mr. Wiener said any dispute about whether the defense complied with the reciprocal discovery provisions could be brought before a judge, but there were sanctions if the defense hid information in this way.

 

Mr. Carpenter believed this bill took discretion away from the court and he did not see how it would help the situation. 

 

Mr. Wiener said he did not believe it removed any discretion from the court but instead removed some discretion from the district attorney, and this was the intent of the bill.

 

Ms. Smith asked Mr. Wiener why defense attorneys deserved the opportunity to receive such information.  Mr. Wiener stressed if a defense attorney could only obtain important information held by the prosecution by having a trial, a tremendous amount of time and money would be wasted.

 

Ms. Smith asked if defense attorneys could obtain police reports on their own.  Mr. Wiener said, "No," the police reports were confidential and could only be received by an agreement or a court contest.

 

Mr. James Jackson, Nevada State Public Defender, spoke in favor of AB 585.  Mr. Jackson said currently the Nevada State Public Defender represented criminal indigent defendants in 9 of the 17 counties.  Many of those counties described themselves as having an open file policy, but in reality there were 9 different open file policies.  He believed this bill would create a level playing field and would clarify what could be released.

 

Mr. Michael Pescetta, Nevada Appellate Post Conviction Project and Representative of Nevada Attorneys for Criminal Justice, testified in support of AB 585.

Mr. Porter asked Mr. Pescetta if this bill would allow access to scope sheets which revealed the criminal history of a witness.  Mr. Pescetta answered, "yes."

 

Legal implications were discussed between Mr. Porter, Mr. Anderson and Mr. Pescetta.

 

Mr. David Sarnowski, Chief of the Criminal Division of the Nevada Attorney General's Office, testified in opposition to AB 585.  First, the bill did not state an effective date.  Second, there were no references to costs, and these could be substantial.

 

Mr. Sarnowski emphasized the following points:

 

1.    If defense counsel wanted to be selective about which documents they wanted, this might be appropriate, but if the state was required to turn over discovery representing hundreds if not thousands of dollars, there should be a cost recovery provision to apply to both the defense and the prosecution.

 

2.    The bill did not create a level playing field.

 

3.    As written the bill allowed the defendant to discover the prosecutor's notes of a witness' remarks.

 

4.    As written the bill allowed discovery of police files, and routinely, police officers became the target in criminal cases.

 

Mr. Kevin Higgins, Senior Deputy Attorney General, also testified in opposition to AB 585 and told the committee he and Mr. Wiener disagreed on what was fair for discovery. 

 

Mr. Bonaventura suggested if the request was reasonable the language in Section 2, lines 23 to 22 should be inserted in Section 1 of the bill to make it more consistent, and perhaps this would solve some of Mr. Higgins' problems.

 

Mr. Higgins thought there would still be disagreements as to what the material meant, but placing the language of Section 2 into Section 1 would make the bill more acceptable.

Ms. Dorothy Nash Holmes, Washoe County District Attorney Office, spoke in opposition to AB 585.  Ms. Holmes supplied the committee with a copy of the reciprocal discovery agreement which was used in Washoe County (Exhibit E).  She explained how the reciprocal discovery agreement functioned in her office.  Ms. Nash Holmes felt the proposed bill was overreaching and would not achieve the desired effect.  She believed the bill would take away the discretion of judges and would require violation of NRS Chapter 179.

 

Mr. Petrak suggested a law should be created which affected the entire state and every county in the same manner.  He thought this particular legislation was good because it would affect all 17 counties.

 

Ms. Holmes agreed ideally all statutes should be written and uniformly interpreted and applied.  She said, however, this particular bill would not be reciprocal.

 

Mr. Sader asked Ms. Holmes to verify an article from the Sparks Tribune dated April 29, 1993.  Mr. Sader cited the article, "In an April 7th memo she threatened to cut off the open discovery between the two offices altogether, accusing some members of the public defenders of withholding information.  `This letter is to put you on notice that we are at this time reevaluating our discovery policy with an eye toward eliminating the reciprocal practice totally,  Nash Holmes writes.' "Continuing Mr. Sader said, "Now your testimony today in front of the committee, as I understand it, is that you intend to perpetuate the open policy."  Ms. Holmes said that was correct.  Mr. Sader suggested her testimony seemed contradictory to her memo.  Ms. Holmes explained why the memo was written.

 

Mr. Sader asked Ms. Holmes if the bill went significantly further than the existing policy, and specifically, what was needed to make it fair and to codify the existing policy.

 

Ms. Holmes said Mr. Graham would address those particular issues.

 

Mr. Ben Graham, Clark County District Attorney's Office, spoke in strong opposition to AB 585.  Mr. Graham noted the current statutory scheme did provide a system for discovery which could be applied uniformly throughout the 17 counties.  He went on to explain the practice in Clark County.

 

Mr. Sader put the bill into a subcommittee composed of Mr. Porter as chairman, Mr. Gibbons and Mr. Petrak.  Mr. Sader requested the prosecutors to provide their suggestions if the open file policy was to be enacted.

 

There being no further testimony, Chairman Sader closed the hearing on AB 585.

 

Mr. Sader requested committee introduction of BDR41-2018 which made various changes to the pari-mutuel wagering statute

 

Mr. Sader requested committee introduction of BDR40-1844,

a program of deferred prosecution for certain crimes in controlled substances.

 

Mr. Sader requested committee introduction of BDR41-2017 which provided a restriction on the issuance of non-restricted gaming licenses to resort hotels.

 

Mr. Sader requested committee introduction of BDR10-479,

revisions to the common interest ownership act.

 

      ASSEMBLYMAN REGAN MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUESTS.

 

      ASSEMBLYMAN TOOMIN SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

There being no further business to come before committee, the meeting was adjourned at 10:30 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      CHANDRA PENDERLAND

      Committee Secretary

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Assembly Committee on Judiciary

May 11, 1993

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