MINUTES OF THE

ASSEMBLY COMMITTEE ON JUDICIARY

Sixty-seventh Session

June 4, 1993

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:10 a.m., on Friday, June 4, 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. William A. Petrak

Mr. John B. Regan

Mr. Scott Scherer

Ms. Stephanie Smith

Mr. Michael Schneider Absent

Mr. Louis A. Toomin Absent

OTHER LEGISLATORS PRESENT:

Senator Lawrence Jacobsen

Western Nevada Senatorial District

OTHERS PRESENT:

Chief Justice Bob Rose, Nevada Supreme Court

Jim Reinhardt, Fire Management Officer for the

Western Region, Nevada Division of Forestry

Kay Zunino, Chief of Support Enforcment, Welfare Division

Lorne Malkiewich, Legislative Counsel

Dr. Robert Whittemore, Psychological Association

Dr. Carol Barker, Nevada Psychological Association

Terry Hubert, Dept. of Prisons Classification Analyst

Kevin Quint, Bureau of Alcohol and Drug Abuse

Certification Board

Elizabeth Breshears, Chief of the Bureau of

Alcohol and Drug Abuse

Laurel Stadler, Lyon County Mothers Against Drunk Driving

Nancy Angres, Deputy Attorney General, Welfare Division

Sharon Claassen, Nevada Network Against Domestic Violence

Following roll call, Chairman Sader opened the hearing on AB 328.

ASSEMBLY BILL 328 - Provides that number of years of judicial service required for justice of supreme court or district judge to qualify for pension benefit be the same as for member of public employees' retirement system.

The Chairman explained AB 328 had previously been heard, acted upon and then reconsidered.

Bob Rose, Chief Justice of the Nevada Supreme Court, told the committee Legislative Counsel, Lorne Malkiewich, would comment regarding, 1) how the fiscal impact posed by AB 328 was considered; and 2) the difference between the Public Employees Retirement System (PERS) and judicial retirement. Chief Justice Rose explained the Supreme Court Justices were sponsoring AB 328 in order to equalize the vesting time among judges and justices in Nevada. In 1989 all employees covered by PERS had their vesting period dropped from 10 to 5 years; however, the judicial retirement had not been included in the reduction. The 134 judges, i.e., municipal judges, justices of the peace, district judges and supreme court justices, were governed by two different retirement systems with a majority (105) covered by PERS which allowed vesting in 5 years. The 29 judges and justices in the judicial retirement plan still had a 10 year vesting period, and the bill was an attempt to conform all judges and justices to the 5-year vesting period.

In order to avoid a fiscal impact, Chief Justice Rose said they had reduced the disability compensation provision contained in the judicial retirement plan prior to the 10 years. He clarified both systems were funded strictly by state contributions. If the bill was enacted both plans would vest in 5 years but under PERS, an individual would receive 25 percent after 5 years. Under the judicial retirement system this would be 4.2 percent, and thereafter benefeits would accrue at the rate of 4.2 percent. Thus, after 10 years, both plans were equal.

Lorne Malkiewich, Legislative Counsel, explained the process the Legislative Counsel used to determine whether a bill required a fiscal note. It had been determined AB 328 would not have a fiscal impact because there were certain aspects which would, in fact, reduce the state's unfunded liability. Current law provided after 10 years a person was entitled to retire; however, if because of a disability, retirement from judicial service was necessary, the judge or justice could retire after 5 years. The benefit paid to someone retiring pursuant to a judicial disability retirement was the benefit for a minimum retirement which was previously 10 years of service. The provisions of Section 3 of AB 328 allowed a disability of retirement of 4.1666 percent instead of a minimum of one fourth of the judge's salary.

Also explaining the retirement system, Mr. Malkiewich said there were retrictions in the Internal Revenue Code to ensure pension plans were not the means of funneling income without subjecting it to taxation. Several years ago, he said, the judicial system had been converted from the PERS plan to a statutory benefit stating if a justice served a certain number of years of service, so much money would be appropriated as a benefit for the judge. Also, a transition period was provided for the judges to determine whether they wished to remain in PERS or go outside the system. Because a number of the justices had a number of years in PERS, the majority had elected to stay in PERS.

Following a short discussion, Chairman Sader closed the hearing on AB 328 and opened the hearing on SB 155.

SENATE BILL 155 - FIRST REPRINT -Expands immunity from liability provided to certain persons who respond to emergencies.

Jim Reinhardt, Fire Management Officer for the Western Region, Nevada Division of Forestry, spoke in support of SB 155.

Chairman Sader explained the bill would change the status of liability for two categories of providers of medical care in emergencies:

1. Employees of any private emergency medical provider dispensing emergency medical services. The bill would place private emergency medical service providers under the state immunity statute which capped immunity at $50,000; and

2. Employee of or volunteer for a public fire fighting agency.

The Chairman said he could understand the volunteer's involvement under the bill since an "employee" could be sued, but a "volunteer" could not be sued even if employees and volunteers were working for the same organization. He questioned whether the employee working for a public fire fighting agency was already under the cap. Mr. Reinhardt said some employees of fire fighter agencies volunteered time when off duty. The bill would clarify the role and the extent of liability, and whether an individual was covered. The policy question would be whether to extend a $50,000 cap for state liability to those two categories of employees.

The Chairman noted on page 2, the deletion of subsection 5, lines 20-27. This section dealt with liability for public fire fighting agencies stating volunteers had no liability except for gross negligence. Since this section was to be excluded, Mr. Sader pointed out the effect would be to extend liability for certain individuals. He asked Mr. Reinhardt if this was the intent. In response, Mr. Reinhardt said with stringent criteria, the state requirements and the extensive training required to respond to medical emergencies, the volunteer organizations had become more professional. Most people with EMT certification practiced very sophisticated medical techniques, which was a great benefit to the fire fighting entities.

As prime sponsor of the bill, Senator Lawrence Jacobsen, Western Nevada Senatorial District, came forward to testify. Chairman Sader acknolwedged the reasoning behind placing employees of, or volunteers of, a public fire fighting agency under the state cap of immunity, but asked Senator Jacobsen to explain why an employee of a private organization providing emergency medical services should be covered by the cap.

In response, Senator Jacobson said in the rural areas most people operating the ambulance services were volunteers. The intent of the bill, he stated, was to make certain those individuals belonged to some organized group. Chairman Sader remained uncertain why employees of private providers of emergency medical services such as Remsa should be included under the state liability cap. Senator Jacobson had no answer. Discussion followed.

Mr. Scherer and Chairman Sader discussed whether the bill would serve to require the state to assume the liability and the Attorney General assume the defense of a private company providing contract services. The Chairman did not believe this would be required, however, after some discussion he agreed with Mr. Scherer NRS 41.0305 to 41.039 included provisions which made the Attorney General the offical attorney and required the attorney general to assume the defense if someone was acting in the course and scope of his employment. Senator Jacobsen said his experiences in his senatorial district had been only with the district attorney.

Mr. Carpenter expressed concern with deleting subsection 5 on page 2. Both he and the Chairman believed by deleting this language the individual went from a situation of immunity to one in which there was liability up to $50,000 for most types of accidents.

The hearing was opened on SB 10.

SENATE BILL 10 - FIRST REPRINT - Revises procedure for evaluation of certain persons convicted of driving under influence of alcohol or controlled substances to determine if such persons can be assigned to program for treatment.

Dr. Robert Whittemore, representing the Nevada State Psychological Association, expressed support of SB 10 and asked the committee to include psychologists as eligible to make both the diagnosis and provide methods of treatment for individuals sentenced pursuant to the statutes governing drug abuse.

Chairman Sader clarified the bill related to the type of persons who could give evaluations of whether an individual was a substance abuser in a DUI offense. The only new provision, the Chairman pointed out, was contained in lines 12-14 which added a psychologist to the list of persons who could make the evaluation.

Dr. Whittemore also pointed out the bill provided an after-the-fact evaluation which would be requested by the Director of Prisons. He said he had not requested this provision, and was somewhat surprised the judiciary had not objected. Chairman Sader believed this was an oversight. The issue of evaluating an offender before the court had made a determination was very significant. Dr. Whittemore agreed and added there should be, 1) the possibility for allowing the judiciary to demand an evaluation for use by the judiciary prior to sentencing; and 2) the director of prisons should then have the option to request evaluation afterwards. The bill wuld appear to repeal the ability of the judge to demand the evaluation.

Dr. Carol Barker, Nevada Psychological Association, also came forward to lend support for the bill. He read prepared testimony into the record (Exhibit C) and continued with a description of the role of psychologists in this area.

Chairman Sader said it was clear to him psychologists, when properly certified, could and probablly should qualify as a discipline capable of making an evaluation.

Mr. Haller questioned whether psychiatrists and medical examiners were qualified and included in the same category with the psychologists. Dr. Whittemore said, "No," the psychiatrists were, by virtue of their medical training, a physician and certified in that capacity.

Representing the Department of Prisons, Terry Hubert, Classification Analyst, said the prison administration supported SB 10.

The Chairman observed AB 499 made the evaluation of individuals suspected of being substance abusers mandatory. The reason for specifying the evaluation before sentencing was to give the judge additional tools to understand the circumstance of the offender. Mr. Hubert indicated the prison administration would like to link that responsibility to the Department of Parole and Probation. Discussion followed.

Kevin Quint, President of the Nevada Association of State Alcohol and Drug Abuse Programs, member of the BADA certification board and a certified drug and alcohol counselor, expressed concerned regarding the addition of psychologists to the list of individuals qualifed to perform the evaluations if the psychologists were not BADA certified. He said BADA had a certification process which helped ensure alcoholics and drug abusers received the proper evaluation and treatment.

Chief of the Bureau of Alcohol and Drug Abuse, Elizabeth Breshears, testified she thought there had been some deviation from the original intent of the bill. It had initially been intended as a window for the prison system to be able to assess those offenders and appropriately place them in the DUI treatment program. Although it was true BADA would continue to fund $150,000 toward the program, this would not be through the prisons directly, but would rather be a joint competitive request for proposals developed so a non-profit entity could perform those services in southern Nevada.

Continuing, Ms. Breshears explained many psychologists performing the evaluations in the substance abuse area went through the BADA certification, which gave them both a psychological examiners license and BADA certification. Although this had worked quite well in the past, Ms. Breshears suggested the Board of Psychological Examiners could also develop a speciality area in substance abuse and she was certain the BADA certification board would be happy to work with the Baord of Psychological Examiners if this was the wish of the committee.

Chairman Sader asked Ms. Breshears which was preferable, the psychologists obtaining BADA certification or whether the Board of Psychological Examiners should develop their own program for certification. Was there a difference? he asked. Ms. Breshears answered there was a difference, part of which might be a difference in philosophy and model. However, she believed the current system worked, and she saw no reason to change it.

Mr. Anderson asked Ms. Breshears if she objected to the prison assuming the additional responsibility for individuals evaluated by the judges in a pre-sentencing. She said she had no objection.

Mr. Anderson expressed his reluctance to repeal the provision in NRS 484.4796, as shown on page 2, "Text of Repealed Section," and asked if Ms. Breshears believed it was essential for the judge to retain the discretionary ability to have pre-trial evaluations where practical and where it had worked in the past. She said she believed Mr. Anderson's recommendation to not repeal the section but to add this discretionary ability would provide the best solution. As for the funding source, Mr. Anderson wondered if funds would be available for use in smaller counties without current programs available at the trial level, or whether it would be restricted to the prison site. She said the $150,000 was specifically earmarked to the Southern Nevada DUI treatment program. However, in other counties non-profit drug treatment programs could apply and compete for funds to work with specific prison populations. As usual, however, the demand exceeded the dollars.

Mr. Carpenter pointedly asked Ms. Breshears if she agreed or disagreed with the premise in subparagraph (c), page 1, lines 12 and 13. In response, Ms. Breshears said her preference would be to omit this provision because she thought the current system was quite satisfactory. How did the psychologist presently obtain certification? Mr. Carpenter asked. Currently, she answered, a psychologist who wished to work in the substance abuse field would ultimately become certified by the Bureau of Alcohol and Drug Abuse by passing two specific exams, oral and written, in the area of substance abuse.

Laurel Stadler, representing the Lyon County Mothers Against Drunk Driving, came forward to oppose the bill. She said her organization believed the judge should have the evaluation information prior to sentencing in order to set the appropriate sentence for the offender. She pointed out testimony heard from the prison representatives during the 1991 Session Select Committee on Corrections, which indicated an assumption all DUI offenders would be eligible for the "305 Program." Also, she said it was clearly stated in the course of the the Select Committee meetings the bill, as written, was specifically directed to alcohol and drug abusers. She wished to see nothing deviate from that specification in the program just to release prison bed space.

Additionally, Ms. Stadler said, statistics on the "305 Program" from Parole and Probation showed when the program first started the Department of Prisons was screening for those to appropriately place in the "305 Program." In September 1992 Parole and Probation had begun its own screening process on the criminal history and background of inmates. To date there had been 26 people who had failed the "305 Program" and returned to prison. All 26 were from the group screened by the Department of Prisons. Once the Department of Parole and Probation began screening, no one had returned to prison. This led to the suspicion the Department of Prisons was primarily interested in freeing bed space.

In previous hearings in the Senate, Ms. Stadler pointed out, there was testimony indicating the prisons were receiving approximately 40 percent of the evaluations from the judges, not the 90 percent testified to by the Department of Prisons representative, Mr. Hubert. Referring to the "Text of Repealed Section," Ms. Stadler said MADD would prefer not to repeal the language shown on page 2. Chairman Sader discussed this text with Ms. Stadler.

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After asking Dr. Whittemore to again come forward, Chairman Sader asked him why a psychologist should be certified by the Board of Psychological Examiners rather than just going through the BADA certification program. In response, Dr. Whittemore said the psychologists did not deny the competency of the BADA program, however, by virtue of their training and background, there were psychologists who were qualified to make the decisions without having to go through the BADA certification. Additionally, he said the Board of Psychological Examiners did not see the rquirement for both an oral and written examination as necessary to identify, diagnose and recommend treatment of substance abusers since there were psychologists who already were competent and qualified to do the evaluations without further training or examination as required for BADA certification.

Chairman Sader closed the hearing on SB 10 and asked the committee to take action on the bills heard.

ASSEMBLY BILL 613 - Authorizes counties to establish program for deferred prosecution for certain crimes relating to controlled substances.

This was a bill on deferred prosecution, Chairman Sader reminded the committee, which had been heard in a subcommittee composed of Mr. Toomin, Mr. Anderson, Mr. Regan and Mr. Carpenter. Exhibit D, an amendment to the bill, was submitted by the chairman of the subcommittee, Mr. Anderson. He told the committee he and Mr. Regan had met with Dorothy North, the prime sponsor of the bill, Capt. Randy Oakes, Las Vegas Metropolitan Police Department, Lt. Jim Nadeau, Washoe County Sheriff's Department, Kevin Kelly, Nevada Attorneys' for Criminal Justice, Richard Morgan, Nevada Trial Lawyers, Vicki Riley, Nevada Trial Lawyers and Ben Graham, Clark County District Attorney's Office. Mr. Anderson said the amendments delineated in Exhibit D had been agreed to by Ms. North, Capt. Oakes, Mr. Kelly and Mr. Graham.

Mr. Anderson pointed out the following corrections in Exhibit D:

1. "Section 1, Line 4" should have read, "Section 2, Line 4".

In essense, the subcommittee had agreed to change the responsibility from the county commissioners to the district or justice courts; and drop the word "ordinances" since the county commissioners, not the justices, adopted ordinances.

2. "Line 13" also needed some spelling and grammar corrections, which could be cleaned up by the bill drafters; and

3. "Section 5 - Line 10" should be "Section 4." In this program, the intent was to make certain Judge Lehman's program was upheld in order to focus on the minor offenders rather than vendors of controlled substances.

In response to Mr. Bonaventura's question, Mr. Anderson said he believed the $85,000 appropriation would be dramatically cut as the result of some of the changes in language. By removing the requirement that the Board of County Commissioners be the entity involved and turning it over to the district and justice courts would provide the opportunity to acknowledge the existence of the program. This was borne out throughout the bill in all references to county commission. In shifting the respnosibility from the Board of County Commissioners and district attorneys involvement to the district and justice courts, where there were currently funds available, would mean a savings. Also, Mr. Anderson told Mr. Bonaventura the committee had earlier provided in Section 6, subsection 2, line 30, had been changed to read, "if a participant is an indigent the county may order the offender to the extent of his financial resourses, to pay any changes for this treatment pursuant to this section. If the offender does not have the financial resources to pay all of these changes, the court shall, to the extent possible, arrange for the offender to obtain his treatment from a treatment facility that receives a sufficient amount of federal or state monies to offset the remainder of the charges." This would dramatically cut the fiscal requirement.

Persisting, Mr. Bonaventura asked if the language appropriating from the state general fund the sum of $85,000 in Section 7, lines 37 and 38 had been retained or deleted. Chairman Sader said the bill, in order to avoid an unfunded mandate, allocated $5,000 to each county, which made up the $85,000 to "establish a program for deferred prosecution." Mr. Scherer believed it was not an unfunded mandate but rather discretionary to the counties since the language merely said the counties "may."

Mr. Anderson said the subcommittee suggested the deletion of Section 7, and to further change the referral language.

ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS AB 613.

ASSEMBLYMAN SCHERER SECONDED THE MOTION.

Chairman Sader clarified the amendment would be to adopt the suggestions in Exhibit D, as well as deletion of Section 7 of the bill. The referral issue would not be part of the motion, but would be dealt with at a later time.

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

Chairman Sader suggested the committee, 1) delete Section 1, lines 3-17; 2) not repeal NRS 484.3796 ("Text of Repealed Section") and add to that language the psychologists' certification as stated in Section 1 of the bill; to further amend the statute by adding language to make the pre-sentence report to Parole and Probation required for every sentence to include the evaluation required by the section, as suggested by Mr. Hubert (from the Department of Prisons).

ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS.

ASSEMBLYMAN SMITH SECONDED THE MOTION.

Further clarifying, Chairman Sader said this would allow the Board of Psychological Examiners to certify their own psychologists as evaluators.

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

Chairman Sader asked Mr. Carpenter to handle the bill on the floor of the Assembly.

SENATE BILL 155 - FIRST REPRINT -Expands immunity from liability provided to certain persons who respond to emergencies.

The Chairman said he found no supporting evidence presented to include persons in subsection 1, page 1, lines 2-8. If subsection 2 was retained, but the brackets deleted from lines 20 and 27, this would serve to clarify that a volunteer of a public fire fighting agency was considered to be an agent of a political subdivision, and therefore, the political subdivision would have to provide a defense and pay for any damages for any volunteer in any judgment, if this was an issue. Mr. Scherer said he was comfortable with the language suggested by the Chairman.

ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS SB 155, FIRST REPRINT.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

ASSEMBLYMAN PORTER MOVED TO DO PASS AB 328.

ASSEMBLYMAN GIBBONS SECONDED THE MOTION.

THE MOTION CARRIED. (ASSEMBLYMAN ANDERSON VOTED NO, ALL OTHERS VOTED YES.)

Mr. Porter was asked to handle the bill on the floor of the Assembly.

Chairman Sader then opened a work session on bills heard the previous day.

ASSEMBLY CONCURRENT RESOLUTION 62 - Urges local law enforcement

agencies to develop guidelines to ensure that citizens are afforded their right to bear arms.

ASSEMBLYMAN PORTER MOVED TO AMEND AND ADOPT ACR 62.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

The amendment was clarified by Chairman Sader. The word "briefcase" would be deleted on page 1, line 13; on line 12 the language would be amended from ". . . location not actually upon the person. . ." to ". . .location not actually upon the person or are being carried within a container by the person. . .". This was language contained in the Attorney General Opinion, Chairman Sader pointed out.

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

The Chairman asked Mr. Collins to handle the bill on the floor of the Assembly.

ASSEMBLY BILL 486 - Eliminiates exception to requirement that court exonerate obligor and release bail upon sentencing of defendant.

ASSEMBLYMAN BONAVENTURA MOVED TO DO PASS AB 486.

ASSEMBLYMAN REGAN SECONDED THE MOTION.

Discussion followed.

THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON AND COLLINS VOTED NO, ALL OTHERS VOTED YES.)

Mr. Bonaventura was asked to handle the bill on the floor.

ASSEMBLY BILL 687 - Lessens length of notice to quit for certain short-term tenancies.

Mr. Gregory explained there had been no agreement between the Nevada Legal Services and the weekly rental industry in the subcommittee meeting. Exhibit E, an amendment which would provide for the language in the bill by specifying that more than one week would be five days, and one week or less would be two days. Also, after 120 days of renting (even under the one week provision) the tenant would revert to the five day provision.

Chairman Sader asked if they had clarified how the process of counting the days. Mr. Gregory said the weekly rental industry had agreed to mail in the same zip code which should assure delivery the following day. The Nevada Legal Services, he said, had requested a longer period of time but from the standpoint of the weekly rental industry, this would not avoid the five day provisions. Therefore, this was an area without agreement. However, there would be notice on the door as well as a mailed notice the next day, and Mr. Gregory believed this should address the concern, although the two parties had not reached an agreement on the issue.

ASSEMBLYMAN GREGORY MOVED TO AMEND AND DO PASS AB 687.

ASSEMBLYMAN COLLINS SECONDED THE MOTION.

Ms. Smith was not certain the language proposed regarding the mailing in the same zip code was sufficient. Chairman Sader noted the bill would remain as it is and if there were problems with the issue of notice, these would have to be resolved in court. Ms. Smith believed it would be more responsible if the committee set the proper policy before the bill was passed out of committee rather than waiting for a controversy which the courts would have to decide.

Mr. Gregory suggested there would still be the posting requirements as shown on page 4, Section 3. Ms. Smith, however, saw this as being uncertain.

THE MOTION CARRIED. (ASSEMBLYMEN SADER AND SMITH VOTED NO, ALL OTHERS VOTED YES.)

Mr. Gregory was asked to handle the bill on the floor.

ASSEMBLY BILL 689 - Makes various changes regarding placement of delinquent children and children in need of supervision.

Chairman Sader reviewed the testimony heard in the initial hearing; and told the committee he had received a letter from the Second Judicial District Court judges who had unanimously opposed AB 689, although there had been indications in the first hearing that the judges supported the bill.

ASSEMBLYMAN REGAN MOVED TO INDEFINITELY POSTPONE AB 689.

ASSEMBLYLMAN CARPENTER SECONDED THE MOTION.

The Chairman said he would like to just amend the bill as there were some meritorious aspects of the bill. He did, however, believe the administration had gone too far in assuming the judges' traditional decision-making.

Nancy Angres, Deputy Attorney General for Welfare, was asked to come forward to answer questions. Ms. Angres told the Chairman she had met with Mr. Sarb, Administrator for the Division of Child and Famnily Services, and Bob Cavakis, Director of Youth Corrections. Extensive amendments were being proposed for the bill which addressed concerns expressed by Judge Gamble the day before and certain other issues. She asked to be able to take the time to organize this material before presenting it to the committee. Chairman Sader asked Ms. Angres to confer with both Judge Gamble, Judge McGee and someone from the Eighth Judicial District Court before presenting the amendments to the committee.

ASSEMBLYMAN REGAN WITHDREW THE MOTION.

ASSEMBLYMAN CARPENTER WITHDREW THE SECOND TO THE MOTION.

ASSEMBLY BILL 637 - FIRST REPRINT - Provides under certain circumstances in criminal proceedings for admissibility of evidence of domestic violence and related expert testimony.

The Chairman called Sharon Claassen, Nevada Network Against Domestic Violence, forward to explain the proposed amendment contained in Exhibit F and to submit Exhibit G, a copy of NRS 33.018, which defined acts which constitute domestic violence. Ms. Claassen told the committee there was now support expressed from the Nevada Trial Lawyers Women's Lobby.

Ms. Claassen pointed out the references to "domestic abuse" in Exhibit F should be changed to read "domestic violence." The amendment, she said, would provide definitions prosecutors and defense attorneys could live with. Chairman Sader explained there was statutory definnition for "domestic violence" but not for "domestic abuse," therefore, the suggested amendment to use the defined term "domestic violence." Also, making the change to "domestic violence," would then open the way for expert opinion and also allowing evidence to support the defense of self defense under the proper circumstances. Ms. Claassen said what was contained in each of the amendments shown in Exhibit F was the ability to produce, 1) evidence concerning the violence itself; and 2) expert testimony as to the beliefs, behavior and perception. The difference between the two paragraphs were that the first paragraph allowed the information in terms of collusion; and the second paragraph dealt with the actual crime of killing and dealt specifically with expanding self defense.

Mr. Porter needed clarification of the intent of the suggested language. Hypothetical situations and questions of relevancy, the relvancy test, state of mind and self defense were discussed.

Noting the reference to "and/or" in the second line of both paragraphs of Exhibit F, Mr. Scherer said if there was no anticipation of the introduction of expert witness testimony on domestic abuse syndrome unless there was first evidence of domestic violence, the "and/or" should simply be "and." This was further discussed between Ms. Claassen and Mr. Scherer. Also, he asked if the word "abuse" in line 4 of the second paragraph should be changed to "violence." Ms. Claassen responded, "Yes."

Mr. Scherer also remarked that the definition of "domestic violence" did not exclude the possibility of a single incident, not necessarily a repeated course of conduct. He wondered if there was any text which specified a "repeated" course of conduct. In response, Ms. Claassen said she did not see the need for the specification since she believed it would depend on the incident.

ASSEMBLYMAN SMITH MOVED TO AMEND AND DO PASS AB 637 BY ADOPTING THE AMENDMENT IN EXHIBIT F AND CHANGING EACH REFERENCE TO "ABUSE" TO "VIOLENCE."

Chairman Sader clarified the reference to "and/or" would also be changed to "and."

ASSEMBLYMAN PETRAK SECONDED THE MOTION.

The issue of "psychological abuse" concerned Mr. Bonaventura, however, Chairman Sader assured him this would be an issue the jury would have to consider on a case-by-case basis. He opined the bill was long overdue and there were many people currently incarcerated whose sentences would probably be much different if their domestic background had actually been clearly given to the jury.

Although he stated he would reluctantly support the bill, Mr. Porter believed the state of mind of the defendant was always relevant in judicial proceedings and there would always be the need to overcome a relevancy objection as to the state of mind. Therefore, he saw an uncertainty as to how the law would apply in the courtroom.

Clarifying, Chairman Sader explained the amendment was to replace the language shown in AB 637 with the language shown in Exhibit F; and to amend the language in Exhibit F by changing the "and/or" references to "and" and changing references to "abuse" to "violence."

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

Ms. Smith was asked to handle the bill on the floor.

ASSEMBLY BILL 604 - Provides additional remedies for collection of child support.

The prime sponsor of the bill and chairman of the subcommittee, Assemblyman Petrak, reviewed the progress of AB 604 and submitted a proposed amendment, Exhibit H, and a letter from Myla Florence, Welfare Administrator, Exhibit I.

Mr. Petrak indicated they had amended the bill by deleting Sections 1 through 12 and inserting the language in Exhibit H, which set forth the process and calcuations for collecting child support.

Kay Zunino, Chief of the Support Enforcment Office for the Welfare Division, came forward. Although she said she had not had a great deal of time to study the proposed amendments in Exhibit H, after a cursory examination, she believed there were a number of problem areas.

1. Section 1, subsection 2. She said it would be easier for her office to use a flat rate of interest. This was not included in the proposed amendment.

2. Section 8. She said it would be necessary to specificy how information on licenses would be disseminated. The complete section needed to be reworked.

3. Section 9, subsection 2. Section 1 of the act would become effective October 15, 1995.

Ms. Zunino asked for more time to consider the proposed amendment in order to come back with recommendations. Mr. Sader agreed the amendments needed additional work. Also, he was concerned with the issue of charging interest, as expressed in Section 1, subsections 1, 2 and 3. He believed this should be a penalty provision in addition to any interest which might be owed. Each child support payment, when it became due, was a judgment, and there was a rate of interest for judgments -- and even if it was not being collected, current law required this. The Chairman saw this as an intent to create a penalty. Although Ms. Zunino agreed with Mr. Sader's premise, she said she really needed more time to study the amendments.

After discussion among committee members, Chairman Sader continued the hearing until the next day, June 5, 1993, at 7:00 a.m. The Chairman urged Mr. Petrak to try to be ready to again discuss AB 604 the next day.

There being no further business, the meeting was adjourned at 10:55 a.m.

RESPECTFULLY SUBMITTED:

Iris Bellinger

Committee Secretary

Assembly Committee on Judiciary

Date: June 4, 1993

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