MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 19, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:07 a.m., May 19, 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. Bernie Anderson
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
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:
Mr. Gene T. Porter, Vice Chairman (absent/excused)
Mr. James A. Gibbons (late/excused)
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. David F. Sarnowski, Chief Deputy, Office of the Attorney General, Criminal Division
Mr. James J. Jackson, Public Defender, Nevada Office of the Public Defender
Mr. John Drew, Acting Director, Nevada Department of Motor Vehicles and Public Safety, Division of Investigations
Mr. Tom Leen, Chief Deputy, Clark County Office of the District Attorney
Ms. Dorothy B. North, Nevada Commission on Substance Abuse Education, Prevention, Enforcement and Treatment
Mr. Noel S. Waters, Nevada District Attorneys Association
Mr. Ben Graham, Nevada District Attorneys Association
Judge Michael E. Fondi, Chairman, Nevada District Judges Association
Judge Dave Gamble, Nevada District Judges Association
Mr. Kevin Quint, President, Nevada Association of State Alcohol and Drug Abuse Programs
Ms. Kathryn Blake, Executive Director, Drug and Alcohol Halfway House
After roll call, Chairman Sader opened the hearing on bills not previously heard. He informed those in attendance testimony on A.B. 598 would be taken the subsequent week.
ASSEMBLY BILL NO. 621 Repeals provisions governing recommendation for punishment agreed upon by defendant and district attorney with plea of guilty or nolo contendere to certain offenses.
Mr. John Carpenter, Assembly District 33, was the prime sponsor of A.B. 621 and introduced the legislation on behalf of the District Judges Association who opposed the provisions contained in subsection 3 of NRS 175.061.
Mr. Carpenter presented a personal experience of a robbery in which the provisions contained in A.B. 621 applied. He maintained, during the sentencing proceedings, the district attorney and the public defender had agreed to plea down the charges from a felony charge to a gross misdemeanor. In turn, the offender was to release information which pertained to local drug dealers. Mr. Carpenter emphasized the discretion of the court had been taken away and it appeared the decision was a means by which to avoid prosecuting. He contended A.B. 621 allowed district attorneys and public defenders more authority in plea bargaining cases.
Judge Dave Gamble, Douglas County District Court, testified in opposition to the passage of A.B. 621. He noted, during arraignments or first appearances in district courts on felony or gross misdemeanor charges, offenders were prepared to plead guilty and work had been completed between the district attorneys and the defense attorneys. In those circumstances, district court judges were not entirely knowledgeable of the cases as information was obtained from the charging instruments. Judges had the opportunity to review factual background information at the time the pleas were accepted.
Judge Gamble stated A.B. 621 would allow plea bargains which specifically addressed appropriate sentences. At the time of the arraignments, the judges had no idea as to whether the sentences were appropriate or not. The judges obtained additional information on the defendants from presentence reports and arguments made during the sentencing hearings. Judges had the right to undo the plea bargains at the time of the sentencings which, he contended, was an illusory right because approximately six weeks worth of work had been undone.
According to Judge Gamble, between the time of the arraignments and the sentencing procedures, the Nevada Department of Parole and Probation prepared reports which enabled judges to ascertain whether the agreed upon sentences were reasonable or other sentences should be imposed. If harsher sentences were imposed, defendants would be provided the opportunity to withdraw their guilty pleas. He maintained there was nothing unfair about this practice other than the judges had undone approximately six weeks worth of work. He added, additional hearings were required which had tremendous coercive effects on the judges who would abide by the sentences although, in many cases, these were not their first choice.
Judge Gamble maintained judges did not accept plea agreements for the same reasons as addressed in Mr. Carpenter's scenario. To support his contention, Judge Gamble presented an example of a high profile individual who had embezzled a substantial amount of money from a charitable foundation. The defendant plead guilty which set forth a relatively innocuous sentence of probation with restitution and a minimal sentence. In this particular case, the judge assumed the district attorney had monitored the situation and would not have recommended a light sentence if the circumstance had not warranted it. Within the six week time period, the judge had been deluged with correspondence from members of the community who were adamant about the light sentence imposed. At the time the judge received the pre-sentence report he realized the defendant could not be sentenced as recommended. During the sentencing proceeding, the judge refused to impose the agreed upon sentence and gave the defendant an opportunity to withdraw his guilty plea. The judge had no choice but to retract the sentence which resulted in a tremendous waste of time and resources. The additional problem was the fact the defendant had pled guilty and then withdrew the guilty plea. Judge Gamble noted the earlier admission of guilt had not been admissible during the trial. He pointed out often offenders desired to replead with non-binding recommendations whereby another sentencing hearing would be conducted. Judge Gamble noted the District Judges Association was adamantly opposed to this particular section of the proposed statute and asked for a repeal.
Judge Michael Fondi, Carson City District Court Judge, First Judicial District, informed the committee he was chairman of the Legislative Committee of the Nevada District Judges Association. According to Judge Fondi, the Judges Association had reviewed the statute, noted the negative experiences and presented the reasons for the repeal.
To support his presentation, Judge Fondi presented copies of the Nevada Supreme Court decision, Case No. 23522, entitled Mark Anthony Stahl vs. The State of Nevada, No. 109 Advance Opinion 68, dated April 27, 1993, Exhibit C. According to Judge Fondi, in this case, the Nevada Supreme Court decision had reversed the sentence imposed by Washoe County Judge Mills Lane. Judge Fondi directed attention to the exchange which had occurred between Judge Lane and the defendant wherein Judge Lane asked if the defendant understood the sentencing was up to the judge, Exhibit C, page 2. The defendant had replied he understood the terms. The judge then stated the attorney would make a recommendation. In this case, Judge Fondi continued, Judge Lane had made the determination the defendant did not deserve a concurrent sentence but a consecutive sentence to the previously imposed sentence in spite of the plea bargain which had been entered into between the district attorney, the defendant and counsel.
Judge Gamble referenced the Nevada Supreme Court case presented by Judge Fondi and noted the recommendation imposed by Judge Lane had not been sufficient by virtue of the Sixty-sixth Legislative Session determination of the amendment to Chapter 174.065. Judge Fondi read, "We are now, as a result of this section, denied the discretion to bind the defendant to a guilty plea if we decide a sentence should be greater than that which has been bargained for."
Judge Fondi emphasized the amount of work expended on these cases. He contended defendants were required by the Nevada Department of Parole and Probation to complete comprehensive forms which provided information that would enable the department to make reasonable recommendations to the judges. The Department of Parole and Probation adhered to a format which applied points to ceratin aspects which pertained to the character of the defendants and would reflect upon the recommendations.
Judge Fondi alleged this particular section of the law totally abrogated the responsibility of the Department of Parole and Probation to objectively recommend the appropriate sentences as well as determine which cases were superfluous. He continued, if the Department of Parole and Probation recommended different sentences than those agreed to by the defendants and the district attorneys, the judges were either bound to follow these recommendations or allow the defendants to withdraw their pleas and start over again which could entail substantial expense. He stated the language appeared to imply, if defendants did not agree with the sentences imposed, they had the right to withdraw their plea.
Judge Fondi pointed out an additional problem when judges made sentences more innovative. To support this statement, he presented an example where a defendant had been placed on probation and ordered to pay restitution to the victim. The defendant had been directed to submit to drug testing and evaluation at his own expense. In addition, county jail time and community service had been levied as a condition of probation. As Judge Fondi understood the provisions to read, if the sentences were not bargained for as part of the agreement between the attorneys and the defendants, and the defendants did not like the sentences, the defendants could withdraw their pleas and renegotiate. This, he contended, could result in a trial and an acquittal.
Mr. Carpenter presented committee members with copies of correspondence from the Nevada Attorneys for Criminal Justice, dated May 18, 1993, Exhibit D, which indicated they were opposed to the repealing of the provision alluded to as it eliminated the hesitancy of the defendants pleading guilty, etc. Judge Fondi strongly disagreed with this and contended the proposed legislation was one more method of usurping the discretion of the district courts in making appropriate sentences.
As a means by which to cope with the statute, Judge Fondi alleged judges refused to accept cases. Judges would continue hearings and direct the prosecutors to negotiate agreements which would not bind the judges or district attorneys. If the decisions were not adhered to, the judges would set the matters for trial. According to Judge Fondi, another method judges utilized to circumvent the statute was to specifically ask the defendants if they would waive their rights to withdraw their pleas which was time consuming and not necessary. He contended this specific section required repealing. He suggested amending the provision and add a subsection 2 which would make the determinations effective on passage and approval.
Judge Gamble brought attention to the correspondence initiated by the Nevada Attorneys for Criminal Justice, Exhibit D, and focused attention on the language which read, "It has provided defendants with more information about what they will face at sentencing and, thereby, eliminated their hesitancy to proceed with negotiated pleas". According to Judge Gamble, this was true although it was not how the system had been designed. The provisions eliminated the discretion of the judges as to which sentences should be levied for specific crimes.
In the event subsection 3 of A.B. 621 was deleted, Mr. Haller asked what the alternative would be. Judge Fondi responded, if subsection 3 was eliminated from A.B. 621, judges would not be bound by the plea bargains entered into by the defendants. This would allow for strong recommendations to the judges but would not bind the judges to any sentences.
Mr. Haller asked if the proposed provisions would eliminate plea bargaining. Judge Fondi assured the deletion of subsection 3 of A.B. 621 would not eliminate plea bargaining.
Mr. Toomin asked if preliminary hearings were conducted prior to arraignments. He queried if preliminary hearings were heard by the justices of the peace as opposed to the district courts. Judge Fondi noted there were few circumstances where district courts held preliminary hearings. Preliminary hearings were conducted in magistrate courts, or justice courts, and were probable cause proceedings where evidence was presented which would bind the cases over to the district courts for trial.
Mr. Toomin asked if the district court judges had access to the information presented during the hearings. Judge Fondi stated district court judges did not always obtain the information as it was ultimately filed. The transcripts of the hearings were required by statute to be filed within 15 days. There might be a waiver of the 15-day rule due to the length of preliminary hearings. Judges might not receive the transcripts until after the plea bargains had been entered into and an effort to bind the judges to a particular course of conduct had been made. The other side of the problem was when there were transcripts to review. This, according to Judge Fondi, was only part of the story as the judges were not fully informed as the defendants' criminal history records would not be included.
Judge Gamble noted written plea agreements were not eliminated under the provisions. He added, two years ago, the system worked well without the provisions contained in A.B. 621, subsection 3. He contended the provisions contained in subsection 3 sped up the judicial system somewhat but at the risk of eliminating a substantial portion of the criminal justice system which was the ability for judges to sentence within the parameters established by the legislature.
Mr. Noel S. Waters, Carson City District Attorney, testified on behalf of the Nevada District Attorneys Association in support of A.B. 621. As he understood the enactment of the law, the purpose had been directed toward the uncertainty in the plea negotiation process. According to Mr. Waters, after the stahl decisions addressed by Judge Fondi, defendants would be afforded statutory rights to withdraw guilty sentences they did not like. Mr. Waters did not believe this was the intent of the bill. After the stahl decisions were made the plea negotiation processes were compromised. In plea negotiations, he did not approve of the fact district attorneys were free to argue. This would be the only type of pleas accepted by the two district judges in his jurisdiction which made plea negotiations difficult.
Mr. Waters agreed the absence of the judges discretion was evident. He added, district court judges were paid to insure appropriate sentences were handed down. He alleged, in certain circumstances, there was the possibility district attorneys might not be privy to criminal history information. It was not uncommon for judges to find the criminal episodes which led to plea bargains had been broader in scope than previously ascertained.
According to Mr. Waters, some plea negotiations resulted in problems of proof as the ability to prove charged crimes was not always certain. He believed defendants were aware the ultimate responsibility in sentencing lay with the district court judges who should have the discretion to reject negotiations. He asked the committee to consider repealing subsection 3 in NRS 175.065 and make it effective upon passage and approval.
Correspondence from District Court Judge J. Charles Thompson, Eighth Judicial District Court, dated May 13, 1993, was presented which supported the repealing of subsection 3 of NRS 174.065, Exhibit E.
Chairman Sader requested committee consideration of A.B. 621.
ASSEMBLYMAN HALLER MOVED AMEND AND DO PASS A.B. 621.
ASSEMBLYMAN TOOMIN SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT. ASSEMBLYMAN GIBBONS WAS ABSENT FOR THE VOTE.)
Mr. Carpenter was assigned to handle A.B. 621 on the Assembly floor.
Chairman Sader closed the hearing on A.B. 621. He opened the hearing on A.B. 613.
ASSEMBLY BILL NO. 613 Authorizes counties to establish program for deferred prosecution for certain crimes relating to controlled substances.
Ms. Dorothy B. North, Chairman, Nevada Commission on Substance Abuse Education, Prevention, Enforcement and Treatment, introduced the legislation on A.B. 613. She maintained the commission saw the development of alternative sanctions, diversion programs and assessments for alcohol and drug offenders as priority factions in the war against drugs.
Ms. North maintained, by conservative estimates, 70 to 85 percent of the offenders serving time in Nevada prisons had been charged with alcohol or drug related offenses. She alleged assessment and treatment for alcohol and drug prone individuals would reduce the number of offenders in the prison system and would decrease the financial burden on taxpayers. She believed the current economic crisis in Nevada was due in part from the increased prison population. She emphasized programs must be supported which would divert individuals from the criminal system rather than build more prisons to house more inmates. She urged passage of A.B. 613.
Mr. Kevin Quint, President, Nevada Association of State Alcohol and Drug Abuse Programs, testified in support of A.B. 613. He maintained there were two concerns, the first being the question of expertise. He alleged law enforcement, criminal justice and treatment program staff worked well together. A.B. 613 would allow for more treatment programs in lieu of more stringent sentences. According to Mr. Quint, the bill did not provide for more input from the treatment facilities. He questioned the ability and expertise of county governments and district attorney offices to understand, develop and implement substance abuse programs.
Mr. Quint alleged the second concern lay with the increased demand for services without adequate funding. Although it was mandatory clients pay for their incurred costs, community-based programs operated on sliding scale fees. He asserted outpatient programs were money losers, and without funding, the programs could not exist on the reimbursement fees alone. He alleged the community-based programs were operating on minimal funding as it was and could not withstand the influx of more clients without longer waiting lists. Caseloads would increase and the quality of the service would decrease.
Mr. Quint submitted two recommendations to the committee which would address these concerns. He suggested the community-based treatment providers be involved with structuring the program concepts. He maintained this would ensure the quality in the services provided. Second, he recommended additional funding be considered.
Ms. Kathryn Blake, Executive Director of a halfway house in Northern Nevada, spoke in favor of A.B. 613. She supported the concept of individuals entering into treatment programs as opposed to incarceration which did not reinforce responsibility. She urged treatment of addiction as a long-term solution to the drug and alcohol social problems.
Mr. Toomin referenced testimony presented by Judge Lehman during the Transportation Committee hearing conducted from his courtroom. Mr. Sader added the passage of A.B. 613 would statutorily bolster the Eighth Judicial District Court drug treatment program by allowing more authority to expand. It would institute similar programs elsewhere. He noted there was a suggested amendment to A.B. 613 which would allow the courts, not the district attorneys, to administer the treatment programs. Mr. Sader reassured the provisions would not interfere with the existing treatment program although it would place more individuals in the program. He cautioned, should A.B. 613 pass as currently drafted, the district attorney would administer the program and there would be problems as the court and the district attorney would be in the business of administering drug programs with different thresholds.
Mr. Haller pointed out A.B. 613 had an $85,000 appropriation and would be referred to the Ways and Means Committee. Chairman Sader surmised the fiscal note was related to the cost of administrating the program at the county level. The bill would allocate $5,000 per county for a total of $85,000.
Lieutenant James Nadeau, Washoe County Sheriff's Office, testified in opposition to the passage of A.B. 613. He stated the same issues were being considered as had been addressed in A.B. 463. The concern he had involved the opening up of deferred sentencing or deferred plea bargains to various levels of drug traffickers. According to Lieutenant Nadeau, the intent of A.B. 613 had been to address those offenders with drug or alcohol addictions, not create loopholes for the drug traffickers.
Mr. Sader alluded to those drug traffickers who were drug dependent and would stop trafficking in illicit substances if they were rehabilitated. Lieutenant Nadeau testified drug traffickers operating in the upper echelon of the drug trade were generally not substance dependant but rather entrepreneurs. According to Lieutenant Nadeau, the non-drug dependant traffickers would qualify for the program under NRS 453.3395 and NRS 453.3405. Mr. Sader assumed, under the provisions of A.B. 613, drug traffickers would be required to be drug dependent to enter the drug treatment program but would not qualify if they did not require substance abuse treatment. Ms. North pointed out this was one issue which needed to be addressed as the provisions should include assessments.
Mr. Sader emphasized there was a legitimate policy dispute which was dependent upon the severity of the crimes. He asked what was suggested to address those individuals who were legitimate drug traffickers, drug dependent, rehabilitable and rehabil-itation efforts might stop future illegal activities. In response, Lieutenant Nadeau stated he supported treatment programs for drug dependent individuals. He adamantly opposed the provisions which would eliminate the records of offenses on those individuals who processed through the program, came out drug free and later returned to drug trafficking.
Lieutenant Nadeau maintained, from the position of law enforcement, the concern lay with the provisions in A.B. 613 which mandated drug traffickers could not have prior convictions under the Uniform Crime Substance Act. According to Lieutenant Nadeau, substance dependent traffickers could be admitted to the program and the information would be eliminated from their records; these same individuals might return to trafficking, be apprehended and charged again, admit they had substance abuse problems and continue in the program. He alluded to a cycle which would develop as the result of the provisions.
To address the issue, Mr. Sader alluded to A.B. 613, line 18, page 1, which mandated drug traffickers could not have participated in the drug program. Lieutenant Nadeau queried how the law enforcement system would be aware of offenders previous involvement with the treatment programs from one county to another particularly if the records had been sealed.
Chairman Sader interjected and asserted there was not a provision in A.B. 613 which mandated records be sealed. He advised the law enforcement SCOPE system would reveal additional arrests. He maintained there were levels of severity of the crimes where offenders would be subject to imprisonment no matter what the rehabilitation possibilities were. Lieutenant Nadeau desired it to be on record that the law enforcement entities were not in favor of A.B. 613 although they would not argue a first level of severity.
Mr. John Drew, Acting Chief, Nevada Department of Motor Vehicles and Public Safety, Division of Investigations, testified in opposition to A.B. 613. He alleged the primary function was the enforcement of the Controlled Substance Act. He was not in opposition to drug treatment as a vital part of the overall program, however, the provisions which would qualify offenders for deferment raised issues for concerned law enforcement personnel. For example, NRS 453.316, which addressed those individuals who maintained facilities for the purpose of the sale and use of controlled substance, would be entitled to deferred sentences.
Mr. Drew maintained drug traffickers made their livelihood off the grief of other people by maintaining drug houses. Offenders arrested for the possession or sales of controlled substances were addressed under the trafficking statute NRS 453.3385, trafficking of a schedule one, i.e. heroin, LSD, cocaine, etc. Under the deferred statute, traffickers of marijuana, methamphetamine and other schedule two category drugs would not apply. In other words, individuals trafficking in marijuana would go to prison. Offenders trafficking in heroin or LSD would have deferred sentences. The proposed legislation created a conflict with NRS 453.3405 which was the crux of the trafficking statute as it gave offenders the ability to receive probation if they cooperated with law enforcement personnel. According to Mr. Drew, the issues lay where offenders could receive deferred sentences for trafficking and not reveal their drug sources.
Mr. Scherer asked how the proposed legislation differed from the program already in effect in Chapter 458 which would be prior to conviction as opposed to subsequent conviction prior to sentencing. He maintained the other issue was the provisions would add additional offenses where individuals would be eligible, including trafficking offenses.
Mr. Drew noted the drug sales statute, NRS 453.321, entailed lesser offenses than the charges of trafficking in illegal substances. Under the sales statutes, offenders would not be entitled to deferments. Only if the offenders were entrepreneurs, in the business of profiting, would they be entitled to deferments. According to Mr. Drew, the majority of individuals who had substance abuse problems sold only enough illegal drugs to support their own habits as they were not trying to make money. These offenses fell under NRS 453.321, the sales, not the trafficking, of illegal substances. The offenders would not be entitled to deferment or treatment, although drug traffickers were eligible for treatment.
Chairman Sader acknowledged A.B. 613 required additional work as there was a major policy question as to the existing program which dealt with offenders after they had been convicted, and the sentence deferrals alluded to in the Chapter 458 program.
It was Mr. Sader's belief legislation was proceeding in the wrong direction. He surmised over 80 percent of inmates incarcerated in the state were either alcohol or drug dependent. Drug addicted offenders were not treated for their addictions, nor were attempts made to educate them or deal with the reasons why these individuals became anti-social. Instead, drug offenders were warehoused in prisons where bad behavior was reinforced. He emphasized legislation needed to remove itself from the penal attitude and focus on treatment. He maintained A.B. 613 did not address the issues. If the issues were the costs of the criminal justice system, then the problems should be scrutinized. He suggested an interim study of the problems or another viable alternative.
Mr. Carpenter asked if the Chapter 458 program could be integrated into the proposed legislation under A.B. 613. Mr. Sader noted this type of program required intense cooperation, coordination and commitment on the county level and would entail intercepting individuals prior to incarceration in the state system.
Ms. Smith asked how the provisions in A.B. 613 interacted with A.B. 499 which was the DUI bill and another effort toward drug treatment. Mr. Sader replied when the DUI treatment program had been proposed, it had been intended to be a prototype for more treatment programs for non-DUI, drug-related individuals. He noted the concept was pending and needed to be proven with the inmate population first. This was the program where treatment for drug and alcohol abuse would be attempted after incarceration.
Mr. Gregory concurred with the need for changes in the provisions contained in A.B. 613. The crisis in the prison system was critical. He emphasized the need for the committee to move forward toward setting policy in this area.
Mr. Sader suggested an interim study on the issues related to the formulation of the county programs, commitment by county commissioners, prosecutors and law enforcement personnel. He suggested drafting a resolution for an interim study. The committee members rescinded the subcommittee proposition.
ASSEMBLYMAN TOOMIN MOVED FOR A BILL DRAFT REQUEST OF AN ASSEMBLY CONCURRENT RESOLUTION FOR AN INTERIM STUDY ON DRUG AND ALCOHOL TREATMENT PROGRAMS FOR OFFENDERS UNDER A.B. 613.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT. ASSEMBLYMAN GIBBONS WAS NOT PRESENT FOR THE VOTE.)
Mr. Haller suggested A.B. 613 be brought back to the Assembly Judiciary Committee rather than proceed to the Assembly Elections and Procedures Committee. He Sader noted this would have to be concurrent as the Elections and Procedures Committee processes were interim studies.
Mr. Sader believed a program could not be established for deferred prosecution which had reasonable prospect of passing during this session. The committee would be better off with a comprehensive study.
Mr. Toomin concurred the issues contained in A.B. 613 should be addressed under an interim study committee. He requested additional time to address the issues and devise solutions. Chairman Sader appointed a subcommittee which would comprise of Mr. Toomin (Chairman), Mr. Anderson, Mr. Regan and Mr. Carpenter.
Mr. Petrak noted Judge Lehman had testified during the Sixty-sixth Legislative Session regarding the Dade County, Florida program. Judge Lehman had initiated a successful program in Clark County. He suggested taking into consideration the Dade County program as a model.
The Nevada Attorneys for Criminal Justice had sent telecopied correspondence, dated May 18, 1993, from Mr. Tom Pitaro, Ms. Patricia Justice and Ms. Karen Winckler in support of passage of A.B. 613.
Chairman Sader closed the hearing on A.B. 613. He opened the hearing on A.B. 627.
ASSEMBLY BILL NO. 627 Allows use of affidavit of owner, possessor or occupant of property at preliminary examination or proceeding of grand jury under certain circumstances.
Mr. Ben Graham, legislative liaison, Nevada District Attorneys Association, testified in support of A.B. 627. He addressed the initial processes whereby probable cause to believe offenses had been committed had been established. According to Mr. Graham, this was a limited function. Defense attorneys had testified cross examinations had been restricted in this area. Routine matters which came before grand juries were reviewed, as well as the preliminary hearings, which required considerable expenditure of money to obtain perfunctory testimonies. It brought in out-of-state victims where possession, consent or ownership was an issue and was heard at the preliminary hearings level and at grand jury proceedings only on a limited basis.
Mr. Graham presented copies of the proposed amendments to A.B. 627, Exhibit G, and referenced page 1, line 14 which read, "3. If at or before the time of the preliminary examination the defendant establishes that:". He noted there was a similar suggested amendment to A.B. 627, page 2, line 14, which read, "3. If at or before the time of the proceeding the defendant establishes that:" He asked for the limited use of affidavits to expedite the processes when bringing out-of-state witnesses to Nevada to testify. This would save the county one quarter of a million dollars annually. Mr. Graham supplied committee members with copies of correspondence from the Clark County Office of the District Attorney, dated April 28, 1993, Exhibit H.
Mr. Tom Leen, Chief Deputy, Clark County District Attorneys Office, Criminal Trial Division, testified in support of A.B. 627. He stated the provisions sought to reach a narrow category of cases which involved individuals charged with crimes involving criminal possessions or criminal entries into specific premises although the provisions did not address crimes against individuals such as sexual assaults, robberies, batteries, etc.
According to Mr. Leen, the provisions did not apply to crimes where out-of-state witnesses could provide information as to whether defendants did or did not commit the crimes, the provisions applied only to situations where the out-of-state witnesses testified they were the owners, possessors or occupants of real or personal properties, and the defendants did not have permission to posses the properties or to enter the premises.
To support his testimony, Mr. Leen presented two Las Vegas Township Justice Court cases, Case No. 6585, Docket No. 92F, The State of Nevada vs. Robert Douglas Adams, and Case No. 92F05526X, The State of Nevada vs. John F. Norwood, Exhibit I. He maintained these were examples of the types of cases the proposed legislation was designed to address. He alleged the most important part of the proposed legislation was contained in the language, "If at or before the time of the preliminary hearing the defense attorney could show the judge that there was substantial and bonafide dispute as to the facts in the affidavit and the interest of justice would be served by having the state bring the person in from out of state, if the defense attorney could show the judge this would be in the interest of justice to bring the victim back, the judge would order the state to do this to testify." Mr. Leen emphasized the language was important because the use of affidavits during preliminary hearings was extensive.
Mr. Leen pointed out there was a section in the Nevada Revised Statutes which pertained to the use of the affidavits of chemists. Presently, the affidavits did not work because the defense would require they be presented with the affidavits days before the hearing. If the defense objected to the affidavits, the chemists were required to testify in court. Defense attorneys were concerned because of the potential of clients coming back and accusing them of not doing their job. Also, it would be more difficult for the prosecutions as cases might have to be continued when witnesses could not be present for the preliminary hearings.
Mr. Leen stated the proposed legislation in A.B. 627 had no adverse effect on the rights of the accused because defense attorneys were able to obtain rulings from judges which directed the state to bring the witnesses in to testify. Affidavits of the out-of-state witnesses were used to establish what the legislation called for.
To further clarify A.B. 627, Mr. Sader suggested inserting the term "resides" in place of the term "located" which would address prospective situations where state residents were out of the state at the time of the preliminary hearings. Mr. Sader suggested utilizing the phrase, "resides outside the state" rather than the phrase, "resides outside of the county". Mr. Sader requested committee consideration of the phrase, "resides a distance over 100 miles from the place of prosecution".
Mr. Scherer asked if there were greater difficulties in compelling individuals to come in from outside the state. In reply, Mr. Leen stated, in general, witnesses cooperated and the distance was not a factor. The primary issue was the criminal records of the defendants. If the defendants had severe enough records, the victims would be forced to return to Nevada to testify. This affected preliminary hearings and not trials. Mr. Sader put to question whether the term, "outside the state or over 100 miles" would suffice.
Mr. James Jackson, Public Defender, Nevada State Public Defender's Office, testified against the passage of A.B. 627. His concern was the ability for defendants to confront witnesses who testified against them. He voiced his concern with the preliminary hearings which could be conducted with affidavits and no cross examinations without the establishment of the elements of the offenses.
Chairman Sader clarified the amendment before the committee was to change the phrase, "is located outside the state of Nevada", which occurred in two places, to read, "resides outside the state of Nevada or over 100 miles from the place of the hearing".
Mr. Gibbons noted there were two other amendments contained in A.B. 627, line 14, page 1 which needed to be included, "if... at or before the time..." and line 14, page 2, "...if at or before...".
ASSEMBLYMAN BONAVENTURA MOVED AMEND AND DO PASS A.B. 627.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
Mr. Anderson voiced his concerned with the 100 mile distance factor due to the long distances in some counties. He alleged there were problems with the proposed amendment and he would vote against passage of A.B. 627.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON AND COLLINS OPPOSED. ASSEMBLYMAN PORTER WAS ABSENT.)
Mr. Toomin would handle A.B. 627 on the Assembly floor.
Chairman Sader closed the hearing on A.B. 627. He opened discussion for bills heard previously.
ASSEMBLY BILL NO. 610 Allows modification of sentence of certain prisoners based upon completion by prisoner of activity intended to rehabilitate him.
ASSEMBLYMAN TOOMIN MOVED TO INDEFINITELY POSTPONE A.B. 610.
ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT.)
Chairman Sader closed the hearing on A.B. 610.
SENATE JOINT RESOLUTION 25 Proposes to amend Nevada consti- tution to create intermediate appellate court.
ASSEMBLYMAN ANDERSON MOVED DO PASS SJR 25.
ASSEMBLYMAN HALLER SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN CARPENTER AND GIBBONS WERE OPPOSED. ASSEMBLYMAN PORTER WAS ABSENT.)
Mr. Porter was assigned to handle SJR 25 on the Assembly floor.
ASSEMBLY BILL NO. 625 Prohibits false accusation in divorce action of battery upon spouse or abuse or neglect of child.
Ms. Vivian Freeman introduced A.B. 625 on behalf of Mr. Samuel Belford.
Chairman Sader informed the committee the motion on A.B. 625 was amend and do pass with the amendment to delete line 8.
ASSEMBLYMAN BONAVENTURA MOVED AMEND AND DO PASS A.B. 625.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
Mr. Scherer supported retaining line 8 in A.B. 625 as there did not appear to be problems in terms of attorneys defending themselves in light of the Supreme Court rules. He did not believe this should apply to divorce actions although the testimony had been this occurred frequently to modify actions which would modify custody orders. He suggested amending line 4 to read, "for an action to modify custody or visitation rights or support obligations".
Mr. Sader surmised the proposed amendment would expand the provisions from divorce actions to other types of actions between spouses or ex-spouses. Mr. Scherer concurred with Mr. Sader's summation. The provisions would involve those issues which related to child custody cases, support or visitation issues. He alleged the intent was not to use children as pawns in these types of allegations. He did not want to expand the bill to encompass all actions but only those which would involve child custody, support or visitation concerns.
Mr. Bonaventura supported retaining line 8 in A.B. 625. He restated his motion to amend and do pass with Mr. Scherer's added language which expanded the breadth to encompass actions between spouses or ex-spouses for child custody support, visitation and divorce cases. Mr. Sader suggested leaving the language open-ended as bill drafters would make the appropriate determinations. He suggested to further amend the motion and clarify the intent by not deleting line 8. Mr. Bonaventura, the initiator of the motion, concurred with the restatement of the motion. The initiator of the second to the motion, Mr. Carpenter, also concurred with the restatement of the motion.
MR. BONAVENTURA RESTATED HIS MOTION TO AMEND AND DO PASS TO INCLUDE MR. SCHERER'S LANGUAGE TO ENCOMPASS ACTIONS BETWEEN SPOUSES OR EXSPOUSES FOR CHILD CUSTODY SUPPORT, VISITATION AND DIVORCE CASES AND TO RETAIN LINE 8.
Ms. Smith favored the concept of A.B. 625 although she believed it would have the opposite effect for the accused then it currently applied to victims. She was concerned, when dealing with legitimate victims, the situation could be turned around where victims could be prosecuted under false accusations and be required to prove sexual abuse had taken place.
THE MOTION CARRIED. (ASSEMBLYMEN SMITH, COLLINS, ANDERSON AND SADER OPPOSED. ASSEMBLYMAN PORTER WAS ABSENT.)
Mr. Bonaventura was designated to handle A.B. 625 on the Assembly floor.
Chairman Sader noted there was no amendment available on A.B. 617, therefore the bill would not be considered at this time.
Chairman Sader opened the hearing for consideration of concurrences to Senate actions. He explained the subsequent bills were Assembly bills which the committee had passed and which had been returned to the Judiciary Committee with Senate amendments. The Judiciary Committee would concur or not concur in the Senate amendments.
ASSEMBLY BILL NO. 87 Increases fees for filing or providing certain commercial documents and provides for searches of certain records for name of secured party.
Chairman Sader noted the Senate had changed the word "and" to "or" in A.B. 87, line 3, page 1. He informed the committee the original language of the bill changed the term "or" to "and". The provisions dealt specifically with UCC financing statements on personal properties and the financing statement had to be tendered. The tender of the filing fees would proceed to the Secretary of State. The proposed language would state "...and acceptance of the statement by the filing officer..." The Secretary of State concurred with the proposed change. Mr. Daykin, Commissioner on Uniform State Laws, had testified before the Senate and rationalized why the "or" should not be changed to "and". One of the reasons was the uniformity in Uniform State Laws as it was part of the Uniform Commercial Code.
Mr. Scherer surmised this constituted filing whether the filing officers accepted it or not. He did not believe they should judge whether the provisions should be accepted or not. The question should be, if they accepted it, whether the individuals submitting the information had done everything they were required to do.
Mr. Sader emphasized the importance of the language as the question as to when the information was filed gave priority. Mr. Sader surmised Mr. Scherer spoke in favor of the amendment and motion to concur.
ASSEMBLYMAN SCHERER MOVED TO CONCUR IN SENATE AMENDMENTS TO A.B. 87.
ASSEMBLYMAN HALLER SECONDED THE MOTION.
Chairman Sader noted the second amendment was a conflict amendment.
THE MOTION TO CONCUR CARRIED. (ASSEMBLYMEN COLLINS AND ANDERSON OPPOSED. ASSEMBLYMAN PORTER WAS ABSENT.)
ASSEMBLY BILL NO. 71 Revises provisions governing return of property retained as evidence.
Chairman Sader advised the committee members the prosecutors supporting A.B. 71 in the Senate suggested the amendments. Mr. Graham stated there had been an oversight on his part as A.B. 71 had been introduced as a cleanup provision. He added, the language which passed through the Assembly Judiciary was too restrictive and placed burdens on law enforcement personnel, therefore, he had asked the Senate to amend the bill. The provisions would continue to set timetables for the return of the properties but did not interfere with the provision in reference to admissability of photographs.
ASSEMBLYMAN HALLER MOVED TO CONCUR IN SENATE AMENDMENTS TO A.B. 87.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT.)
ASSEMBLY BILL NO. 230 Provides that certain uncollected baccarat commissions must be included in computation of gross revenue of gaming licensee.
Chairman Sader informed the committee A.B. 230 was a gaming bill which had been proposed by the Nevada Resort Association and dealt with baccarat gaming. The Senate had requested the term "baccarat commission" be defined. The language had been proposed by Mr. Fess. A.B. 230 was supported by the regulators and adopted by the committee. There had not been opposition in the Senate.
ASSEMBLYMAN SMITH MOVED TO CONCUR IN SENATE AMENDMENTS TO A.B. 230.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
Mr. Scherer disclosed he worked for a gaming licensee which did not operate any baccarat gaming which would not have an impact on the outcome of the vote on A.B. 230. Chairman Sader noted the rules allowed committeemen to make this action one time.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT)
ASSEMBLY BILL NO. 348 Provides for continuing treatment of juvenile offender certified as adult.
Chairman Sader reminded the committee the amendment to A.B. 348 resolved a conflict.
ASSEMBLYMAN GIBBONS MOVED TO CONCUR IN SENATE AMENDMENTS TO A.B. 348.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT)
ASSEMBLY BILL NO. 199 Creates crimes of stalking and First Reprint aggravated stalking.
Mr. Gregory had been the prime sponsor of A.B. 199. Mr. Sader stated the Senate proposed two basic things with the amendment. They elevated the crime of aggravated stalking to a felony. The Assembly Judiciary had passed A.B. 199 as mandating first offenses as gross misdemeanor charges and second offenses as felonies. The Senate had determined aggravated stalking to be a felony charge. The Assembly Judiciary had passed the bill with one exception which was picketing and had enhanced the language regarding statutory, constitutional law and regulations authorizing certain conduct. The Senate changed this and had presented substantial testimony. The press association requested more specific language to avoid legitimate endeavors classified as stalking as contained in Sections 1, 2 and 3. Chairman Sader stated he reviewed A.B. 199 and believed the Senate language was more favorable.
Mr. Graham urged the Assembly Judiciary not to concur with the Senate amendments and suggested the Senate not recede as A.B. 199 would need to go to conference to permit Justice Court jurisdiction. The language in question was contained on the last page and read, "...any court of competent jurisdiction..." The lower court association had requested definition of the phrase, "any court of competent jurisdiction". This provision would limit cases to district and family courts as justice courts were not courts of general jurisdiction which had been spelled out by the legislature. He added, in order to provide justice courts the authority to issue the preliminary injunctions, the legislature had to give them the authority. Mr. Graham proposed amending the justice court authorization by inserting the provisions, referencing A.B. 199, line 3, page 3.
Chairman Sader concurred with the suggested changes and advised the committee members they would have to not concur to comply. He noted the same language occurred in A.B. 199, line 10, page 2.
Mr. Collins addressed the provisions contained in A.B. 199, page 2 and voiced his concern with the licensing of the media which would allow them to stalk. He alleged this would provide a loophole in the statutes for stalkers. He did not believe the media was qualified as a legitimate exemption.
Mr. Gregory concurred with the Senate changes made on A.B. 199.
Mr. Sader concurred with Mr. Collins' concern and noted stalkers could be extremely resourceful and would take advantage of the loopholes. According to Mr. Sader, it appeared the provisions which allowed the media exemptions had been written narrowly. He reminded the committee the opposition from the press was strong and focused on the First Amendment.
Mr. Scherer maintained listing the provisions in A.B. 199, line 10, page 2 would create problems as he foresaw concerned parties returning every legislative session asking for additional exceptions to be added to the list. He contended the provisions in question would create circumstances where individuals engaged in legitimate activities would be prosecuted because the specific activities were not listed nor exempted.
Chairman Sader stated the Assembly Judiciary Committee would not concur with a portion of the proposed Senate amendments, however, the consensus of the committee was that the majority of the Senate proposals were acceptable with the exception of Mr. Collins whose concern was with the media exception. He noted this provided direction for the conference committee. If the conference committee was solely organized for the purpose of changing the court of competent jurisdiction, the committee would do this expediently.
Chairman Sader suggested the committee move not to concur with the Senate amendment to A.B. 199.
ASSEMBLYMAN TOOMIN MOVED NOT TO CONCUR IN SENATE AMENDMENTS TO A.B. 199.
ASSEMBLYMAN GREGORY SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT)
Mr. Sader appointed himself as chairman of the first conference committee on A.B. 199 and Assemblymen Gregory and Toomin were designated committee members.
Chairman Sader requested committee consideration of bill draft introductions.
BDR 38-746 limited the liability of the state for attorneys' fees in recovering reimbursements for assistance to the medically indigent. Chairman Sader informed the committee the bill draft request originated in the Human Resources Committee although the sponsor was the Nevada State Welfare Division.
BDR 5-1965 authorized certain counties to establish a department of family youth and juvenile services. Chairman Sader informed the committee the bill draft request was initiated by the Eight Judicial Court.
BDR 40-1955 expanded authority for judges to reduce or suspend sentences of certain persons convicted of trafficking in controlled substances.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE THREE BILL DRAFT REQUESTS.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN PORTER WAS ABSENT)
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 11:00 a.m.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
May 19, 1993
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