MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
January 27, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Wednesday, January 27, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest A. Adler
STAFF MEMBERS PRESENT:
Maddie Fisher, Primary Secretary
Sherry Nesbitt, Committee Secretary
Dennis Neilander, Senior Research Analyst
OTHERS PRESENT:
Robin Bates, Nevada Department of Prisons
Stefanie Nixon, Nevada Department of Prisons
Anne Cathcart, Nevada Attorney General's Office
Kip Botkin, City of Henderson
Jim Nadeau, Washoe County Sheriff's Office
Paul McGrath, Nevada Sheriffs and Chiefs
Randy Oaks, Las Vegas Metropolitan Police Department
Joe Evers, Las Vegas Metropolitan Police Department
Frank Barker, Las Vegas Metropolitan Police Department
Nile D. Carson, Reno Police Department
Ed Fend, American Association of Retired Persons
Victoria D. Riley, Nevada Trial Lawyers Association
Richard Morgan, Nevada Trial Lawyers Association
Betty Morris
Cathi Noonkester, Intern
Brian Hutchins, Nevada Department Of Transportation
David F. Sarnowski, Deputy Attorney General
James Jackson, Nevada State Public Defender
Senator James called the meeting to order at 1:40 p.m. by advising the committee had a request for a bill draft requested by letter from District Judge Gamble. The request was passed to committee members for review. Senator James read Nevada Revised Statutes (N.R.S.) Section 62.040 (2) which the request proposed to amend): "this chapter does not deprive justices' courts and municipal courts" and currently states "in any county whose population is 400,000 or more of original jurisdiction to try juveniles charged with minor traffic violations." The proposed bill would excise that language to read "this chapter does not deprive justices' courts and municipal courts of original jurisdiction to try juveniles charged with minor traffic violations", making the Section applicable to quest. The only impact perceived would be the question of lack of notice to parents if fines are not handled through the Juvenile Court.
SENATOR ADLER MOVED TO MAKE THIS A COMMITTEE BILL DRAFT REQUEST.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Senator James presented a request for committee introduction received by Parole and Probation, to allow an offender to be returned to custody of the Department of Prisons pending completion of an inquiry concerning alleged violation of terms or conditions of his residential confinement.
SENATOR JACOBSEN MOVED TO MAKE THIS A COMMITTEE BILL DRAFT REQUEST.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Senator James affirmed the committee's decision at the January 22, 1993 meeting to consider S.B. 9 and S.B. 13 pending receipt of the legislative history for the statute these bills propose to amend.
SENATE BILL 9: Eliminates requirement that prisoner be tested for human immunodeficiency virus upon release from prison. (BDR 16-914)
SENATE BILL 13: Clarifies authority of department of prisons to determine appropriate method to test offender for human immunodeficiency virus. (BDR 16-515)
The 1987 addition to the statutes required a prisoner be tested upon release from confinement in prison. (The legislative history is Exhibit C.)
Mr. Neilander pointed out the vote of the Ways and Means Committee in 1987 (top of page 5418 of microfiche paging). On the Senate side the history is somewhat scant but is evident
again. He stated for the record:
Senator Rawson said 'to state clearly once more what the problem is that when people are tested on entering the prison and found negative there's still some liability incurred if the inmates show positive coming out.' That was the concern about exit testing. The state may have some exposure to liability from prisoners who contract the disease while incarcerated. The second theory raised is also raised in this testimony. Chairman Raggio believed the question of health and safety more important than liability which may or may not be incurred. A clause was added requiring any information gathered from testing inmates remain confidential, even though the Welfare Division was allowed to have that information transmitted to them. It is a different section of NRS, but was in this bill."
S.B. 13 proposed also to modify the requirement for the nature of the exit test. Senator James saw good and sound reasons considered by the 1987 session in adopting the exit testing requirement. Concerns of the committee showed there were reasons to test for HIV upon a prisoner's exit from the prison system. Among those reasons are the ones articulated in the legislative history. Senator James believed there are additional reasons raised in the hearing before this committee. Questions from members of the committee showed there were reasons, among them the notion that prisoners are in a high-risk environment. They are subjected to this disease, we know very little about this disease, and there exists a rehabilitation aspect to prison confinement of which knowledge on the part of the prisoner that he or she contracted the disease while in prison or would seem to be an important part. This would allow the prisoner to notify their own families, and society as a whole could be notified, which in fact occurs. It was the Chairman's opinion this is not an appropriate time to remove this requirement, and would entertain a motion to indefinitely postpone S.B. 9.
SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 9.
SENATOR SMITH SECONDED THE MOTION.
Senator James affirmatively replied to Senator Jacobsen's question whether an inmate could test negative one day and positive the next. The Chairman called for a vote.
THE MOTION CARRIED UNANIMOUSLY.
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Senator James brought S.B. 13 for consideration.
Senator Titus agreed to make a motion, but as an amended do pass to include requiring testing and notifying the prisoner before release.
Senator Adler did not see notification as practical unless everyone was tested 6 months before release. With pending prisoner release legislation, they may not be incarcerated long enough to test.
Robin Bates, Chairman of Classification and Planning for the Department of Prisons believed this would create a conflict between compulsory releases and notifying the prisoner before release.
Senator Titus asked if sending results would be a problem.
Mr. Bates replied for people on parole it is a minimal problem, for others, a larger one. The department sends results, but does not require a return receipt.
Senator Titus asked if a return receipt could be used.
Senator Adler believed this would not work; these people would not sign for the letter.
Mr. Bates stated the policy adopted by the Board of Prison Commissioners as an administrative regulation is to make best effort to notify.
Senator James called for a motion to do pass.
Senator Titus agreed to change her motion from Amended and Do Pass, to Do Pass, as the record contains the committee's intent.
SENATOR TITUS MOVED TO DO PASS S.B 13.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Senator James opened discussion on S.B. 15.
SENATE BILL 15: Requires special verdict in action in which state or its political subdivision is sole named defendant. (BDR 3-507).
Senator James reviewed previous testimony, did not see the need for this particular legislation, and would entertain a motion to indefinitely postpone the bill.
SENATOR SMITH MOVED TO INDEFINITELY POSTPONE S.B. 15.
SENATOR McGINNESS SECONDED THE MOTION.
Senator Adler stated he did not believe it would hurt to have the proposed bill, and recommended it be passed.
SENATOR ADLER MOVED TO DO PASS S.B. 15.
SENATOR SHAFFER SECONDED THE MOTION.
Senator Titus explained reasons she would vote in favor of the bill.
Senator James believed the bill gives the state no advantage it does not already have; but does give it a procedural advantage.
The Chairman called for a vote for the motion on the floor.
THE MOTION CARRIED. (SENATORS JAMES AND SMITH VOTED NO.)
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Senator James opened hearing on S.B. 5.
SENATE BILL 5: Makes various changes relating to prisoners in local facilities for detention. (BDR 16-443)
The chairman stated this bill requests procedure for the sheriff of each county and chief of police of each city to set up a trust fund and safeguard valuables and money of prisoners in their custody; and the return of that money. This bill was requested by the Las Vegas Metropolitan Police Department.
Captain Randy Oaks representing the Las Vegas Metropolitan Police Department, and Director Joe Evers of the department's Detention Services Division presented oral testimony. Citing a requirement from the cities of North Las Vegas, Henderson and Las Vegas, Mr. Oaks asked reference to the Chief of Police of each city be stricken, to have this bill then only apply to the sheriff of each county maintaining a county jail. (Corrected bill is Exhibit D.)
Captain Oaks advised the language in section 2 was generated by the bill drafter to set up a mechanism for what they really wanted, which is in section 3. That language sets up a separate accounting procedure for monies held for prisoners, which is not conducive to short term detention. This procedure is in effect in Clark County. Toward the bottom of section 2, the drafter indicated interest earned on monies credited would go into the county general fund; which is not in the best interest of the cities.
Captaion Oaks stated the crux of this bill is in section 3: ability to recover damages from monies credited to the account of a prisoner for damage he does. A prisoner may appeal this through an administrative hearing process. Section 2 deals with the means by which they account for the funds and have those funds available for deductions.
Director Evers testified the benefit derived is two fold; first, the opportunity to put the money in an interest bearing account; and second, to insure continuing sufficient funds. They want to (1) hold prisoners accountable for their behavior without filing criminal charges for restitution, and (2) to be sure the interest is put back into the account and not to the general fund.
Senator Shaffer asked how much money Mr. Evers was referring to, and is there a limit as to how much they are going to put in this fund?
Mr. Evers stated to his knowledge there is no limit.
Captain Oaks said this would depend on the amount of money each prisoner kept in their account, and had in their possession when they came into custody.
Mr. Evers added it would also be the result of the number of inmates in custody.
Senator Shaffer wondered if it was possible to assess, project, or estimate how much damage one prisoner could do. Is a large amount of money per person needed or does what they have in their pocket goes into this?
Mr. Evers responded the glass in some high security modular areas costs approximately $600 per square foot. The security glass panels on the exterior of the cells cost about $400 each. From time to time the panels are damaged if the prisoners obtain, for example, a cigarette lighter, cutting and poking at the glass which is made in layers. Prisoners must be provided natural lighting so only one small narrow window can be plated. If this breakage occurs throughout the facility, this type of behavior will not only be administratively dealt with in terms of disciplinary action, but also with practicality by means of prisoners paying restitution.
Senator Smith asked what happens to money a prisoner may have, not only on his person but someplace over which he has no control while in prison. Would putting that interest in the general fund be taking something rightfully belonging to him? Is that not a fine to him; that his resources are being used to profit the county's general fund?
Mr. Evers explained the department has in place a system which gives the inmate the right to release any property or monies he or she chooses to anyone they choose, with a property release form.
Senator Smith asked about interest earned on any holdings. Do prisoners have the right to create a bank account and deposit their money?
Mr. Evers explaind the procedure. The department takes prisoners' property when they are placed in custody, gives them a receipt for monies and/or personal property items, all of which is listed. If a prisoner purchases commissary items the department has an itemized list of purchases, the amount of that purchase and the deducted balance then on the account. People bring in money for inmates regularly, and a running balance is kept. At any time a prisoner wants to release part or all of that, they have the right to do so.
Senator James asked if the prisoner has the right by statute to get the money back. The statute states "the sheriff of each county may". The department takes out the other language and the "respectively", "except money and valuables which belong to the prisoner at the time of his incarceration". That is the operative language.
Mr. Evers agreed.
Senator James said "may accept" seemed ambiguous. Discretion is in the sheriff as to what he will or will not accept. Does the sheriff take all money or valuables belonging to the prisoner, for example a millionaire's accumulated assets?
Mr. Evers stated it is not uncommon for people to come into detention with thousand of dollars. The department gives them a receipt for the money, puts it in an account in the bank and tracks it.
Senator James' concern was the language does not say "which belonged to the prisoner at the time of his incarceration."
Mr. Evers stated this was not the intent, and agreed with Senator James perhaps the bill should be amended in that regard, to read only money on the prisoner's person.
Captain Oaks believed one reason the language is permissive is to cover an offender coming in on a misdemeanor crime or is due to be bailed out very shortly. The department does not have to deposit that money and cut the prisoner a check. They can return those monies or valuables directly to the person upon release. The language leads into "may accept" but says "the Sheriff must or shall then account separately and deposit the money in a trust fund", and so forth. They do not want to be locked into putting everyone's money in that fund the minute they are brought in and issue a check 30 minutes later when they leave.
Senator Shaffer inquired if the prisoner's act is illegal and hinges around drugs, are there not forfeiture rights to all the monies? Who has priority ?
Mr. Evers said generally money suspected to be fruits of a crime is put into evidence by the arresting officers.
Senator Titus clarified previous testimony.
Senator McGinness asked if valuable property could be taken as damage restitution if the prisoner had little money.
Mr. Evers said no, this is not considered.
Senator Jacobsen asked who makes determination of the damage?
Mr. Evers said generally, their maintenance staff gets estimates from various vendors which are evaluated, and the department determines they are actual costs.
Senator James noticed the prisoner has a hearing before the deduction is made. But there is no hearing as to the acceptance of money and valuables.
Mr. Evers stated this is correct; the money is credited to the prisoner's account during incarceration.
Senator James' concern was determining damage restitution for a prisoner having much money in his account as opposed to one with a small amount.
Captain Oaks stated those not having the funds in their account would be processed by the filing of criminal charges and possible civil restitution. The department is not saying they would not take action to recover damages if the person did not have the money.
Senator Smith confirmed testimony regarding prisoners turning property over to another person.
Senator James wondered if that ought to be adopted, believing this would insulate from constitutional problems, as the department does not have a hearing procedure before forfeiture, which would occur if the language was taken as it was. He proposed an amendment to that effect to say essentially the sheriff may accept the money and valuables on the person of the prisoner, and also money and valuables the prisoner chooses to have in this fund; but the prisoner has the ability to transfer other money and valuables to another person to take care of their needs, which would not become part of the fund.
Captain Oaks stated they would have no objection to that amendment and would still be supportive of the bill.
Senator James asked if, in other parts of the statutes, it is common practice that interest income earned by prisoners is forfeited; and the money goes to the state.
Mr. Evers was not aware of any commissary accounts which are in interest bearing accounts. This is why the department brought this forward for consideration.
Senator Smith asked to see the amendment language as articulated by Senator James.
Mr. Neilander was asked to draft the amendment.
Senator Jacobsen asked, if a person apprehended and booked found to be a federal parolee and transferred to another facility, gets his equipment back, or is it transferred as part of his possessions?
Mr. Evers advised all possessions go with the prisoner to the new facility, federal or state.
Senator James asked if, at line 8 of section 2 the word "after" the time of the prisoner's incarceration should be changed to "during."
Captain Oaks thought it should be "during."
Senator James would request that amendment as well. Mr. Neilander clarified the amendment: deleting any reference to the Chief of Police throughout the bill; at line 4 adding a provision instead of "belong to the prisoner" it should be something to the effect "on the person of the prisoner", or "in his possession." An element will be added explaining a prisoner could withdraw his funds and transfer them outside the facility at any time; and finally on line 8 "after" will be stricken and replaced with "during."
Jim Nadeau, Washoe County Sheriff's Department, gave oral testimony to clarify the commissary fund is used strictly for the benefit of inmates. Neither the funds nor interest thereon go back to the department or similar agency. This is all one account (in Washoe County, a commissary account) which must be audited and accounted for.
Paul McGrath, Sheriff of Carson, representing the Nevada Sheriffs and Chiefs testified his organization supports the bill as amended, and commented the commissary account in Carson is an automated account, including all things given prisoners. At each year-end the money is put into a permanent account used strictly for prisoners. Neither funds nor interest revert to the general fund.
Senator James opened the hearing on S.B. 6.
SENATE BILL 6: Requires department of prisons to pay costs of detaining parolee in county jail for violation of condition of parole. (BDR 16-444)
Senator James advised this bill essentially addresses who should pay the costs of temporary confinement of a parolee violating the terms of his parole. It would shift that cost, under certain circumstances, to the Department of Prisons.
Captain Randy Oaks, Las Vegas Metropolitan Police Department and Director Joe Evers of the department gave oral testimony. Captain Oaks advised this bill is brought for a couple of reasons, and first asked a correction be made within the bill. On line 8, the words "not less than" should be stricken and replaced with "within". As the bill reads the department could not take custody of their parolee within 48 hours, which is their desire. He advised the department is not trying to shift the cost factor from the county to the state, but to get Parole and Probation to do something with these violators within a shorter period of time, so there is no cost burden. For continued detention they are wards of the state, and should be the state's responsibility.
Senator James stated this bill has a fiscal impact and read the fiscal note from the Department of Prisons indicating someone violating conditions of parole and arrested, is entitled under Morrissey v. Brewer, a United States Supreme Court decision, to the procedural protections to determine whether there exists probable cause to keep them there, and that they have violated their parole. According to the fiscal note, the prisoner cannot be transferred to the state prison under the United States Supreme Court decision, until that has occurred. There is an objection on the part of the Department of Prisons to absorb any costs associated with the time required to go through that procedural process. Those costs should not be the responsibility of the department, because they cannot, under the United States Constitution take custody of the prisoner. Secondly, if there really exist situations where people are kept in confinement, costing local government large sums of money, this legislation would essentially say either the Department of Prisons comes for the prisoner, or the state has to pay. This does seem to have a definite fiscal impact on the state. The fiscal note does not say what the cost will be, possibly because it is an unknown figure. This may need review by the finance committee. The Supreme Court decided what happened to these people when they are picked up.
Mr. Evers orally testified to figures showing the department's concern. From November through January 25, just to house (with no ancillary employee/officer costs) an average of 85 parolees in November, 78 in December and 85.5 in January, a cost of $466,035 out of their budget. When one officer does nothing but work with parole, to get these people moved along as quickly as possible, this is a tremendous impact in a 3 month period. The department's position is they have housed those people and paid the cost for housing throughout the criminal cases being adjudicated, and then they return and the department has the same responsibility.
In response to Senator Jacobsen's question whether they are ever asked to hold a prisoner for any length of time, Mr. Evers believes this is common in small counties.
Senator Jacobsen asked if someone from one of the small counties could answer whether the prison system charges the department.
Senator Smith had a concern regarding the first two or three lines of the bill. The department picks up the individual for a crime other than parole violation, and then discovers the person was in violation of his parole, the crime then becomes violating parole, rather than the initial crime.
Captain Oaks stated under this bill, they, as a local jurisdiction, would have no charges pending against the person, who would otherwise be free to leave the jail, and would not be costing the department to incarcerate him. He drew attention to lines 6 and 7, indicating "unless a parole or probation officer can show good cause why the parolee should remain incarcerated if there are no criminal charges pending or warrants outstanding."
Senator Smith did not understand the other part, even with lines 6 and 7. He knew what the department wanted, but they have made a determination, sometime after having apprehended the person to get away from the cost of keeping him. The lesser charge may be violation of parole.
Senator James stated it appeared there is a compelling argument in the cost the department is incurring. He asked if it is the Parole Board that has to have the hearing, before the person can be sent to jail.
Mr. Evers said this is correct. Statute language specifies these time frames in which certain things need to occur, but sometimes these time frames are not adhered to. This is probably justified but it sometimes takes months for the department to receive packages with information the Department of Prisons must have before they will accept this person. Female detainees must stay until the hearing is held and the package received so they can be transported north; there is no detention center for females in the south.
Robin Bates from the Department of Prisons testified regarding the preliminary inquiry, an administrative action taken by the Department of Parole and Probation. The hearing officer is an employee of the department. If he finds probable cause the case is referred to the Board of Parole Commissioners within 15days, after which the person can be transported by the Department of Prisons. If the Department of Prisons were requested to take someone due to finding of probable cause, or the inquiry has been waived, or the person has been convicted of a new offense, they will take the person.
David Sarnowski, Deputy Attorney General and Chief of the Criminal Justice Division gave oral testimony regarding his division representing and providing advisory services to the Department of Parole and Probation, the Board of Parole Commissioners and the Nevada Department of Prisons on a day to day basis. Their initial suggestion was consistent with the Chairman's recommendation to send this bill to a money committee. He agreed the driving force is a money concern. However, in defense of the Department of Prisons, it is his department's estimation of the three entities involved in the parole revocation process, it probably should not be the burden of the Department of Prisons to pay. Mr. Sarnowski explained a parolee is apprehended and ultimately the parolee ends up in confinement. A Department of Parole and Probation employee conducts the preliminary hearing or obtains the prisoner's waiver within the time frame allowed by regulations. If there are no other reasons not to take the prisoner the department will take the prisoner. The actors in all of these instances are either the Board of Parole Commissioners or the Department of Parole and Probation. The Department of Prisons essentially acts as a passive party and merely takes people ordered into their confinement through the Parole Board or a court. They have absolutely no ability to impact this process. The Parole Board must then conduct a full-blown hearing which must meet the minimum due process requirements of Morrissey v. Brewer. At that hearing, the department acts as a prosecutor. The state Attorney General's office is not involved nor is the District Attorney's office. Frequently the prisoner will have counsel, either retained or from a public defender entity, and continuances are requested and granted. It become problematic, possibly because of outstanding charges. As he understood Captain Oaks' testimony, there would be no charges assessed to the state, as those charges had not yet been adjudicated. In a majority of cases a prisoner waives his right to an immediate full-blown hearing if there are outstanding charges; wanting the determination of the criminal court process before they say or do anything at the full-blown hearing. The Parole Board itself has some ability to regulate processing time, but in comporting with due process requirements it gives considerable latitude to either an unrepresented prisoner or one with counsel wishing to extend proceedings. These views need to be taken into account once the amount of money is determined.
Senator James reiterated previous testimony.
Jim Nadeau of the Washoe County Sheriff's Office stated they support this legislation to attempt determination of an expeditious manner in which these people can be handled. The Las Vegas Metropolitan Police is in the same position as the Washoe County Sheriff's Office; both have full jails. This is one of their concerns: to attempt elimination of those persons who may not need to be there. A variety of options, including electronic supervision are available.
Senator James reiterated that none of those things would be addressed by this bill. He asked if there should be a bill in this committee that does expedite the procedure rather than simply saying after a certain period of time, the state starts to pay.
Mr. Nadeau felt one consideration should be alternatives to incarceration. He suggested there may be alternatives to the payment aspect, some of which are already in place.
Mr. Bates answered Senator James' question stating he believed Parole and Probation has the capacity to release prisoners, having these things in place. Mr. Nadeau believed Washoe County incurs $56 per day to house a prisoner. Additionally, the overpopulation factor opens them up to other considerations and concerns. Anywhere they can eliminate a prisoner safely is their concern.
Senator James believed this is already in the statute; they cannot take advantage of it, but the Department of Parole and Probation can.
Mr. McGrath, Nevada Sheriffs and Chiefs, stated the 7 days indicated by Mr. Bates would be agreeable with the Nevada Sheriffs and Chiefs, allowing them to complete processing, instead of 48 hours up to 7 days. Carson City has the same problem as Washoe and Clark Counties, with the number of parolees brought into their detention facility. Possibly after 7 days, instead of releasing them, Parole and Probation could take them to the prison. He knows Clark County has facilities; if they cannot comply with the 7 day time frame, they could transfer them back to the prison.
Senator Adler did not believe electronic surveillance would work. Some of these people already have electronic surveillance. They are being placed in the facility because the device has determined they have a technical violation and need to be incarcerated.
Mr. Bates agreed in some cases this would be true. He stated
regarding jurisdiction, the district courts overlap into different counties and many times prisoners from Lyon and Storey counties come into the Carson City jail on parole and probational issues.
Senator Jacobsen recounted an experience 2 years ago when he and Assemblyman Bob Price did a voluntary night shift in Las Vegas with a team of parole people. His observed booking procedure was the same regardless of the charge.
Mr. Nadeau believed this procedure is standard throughout the state.
Senator James asked for any further information on S.B.6. There being none, he announced a brief recess [called to locate Senator McGinness, who had been called out of committee earlier. Just prior to the recess, Senators Adler, Shaffer and Titus left the meeting to attend a party caucus].
Senator James reconvened the committee at approximately 3:15 p.m., and advised the committee had a quorum. He reiterated testimony requesting the 48 hours to be changed to the period of time statutorily required in which the hearing would take place.
Senator James asked staff counsel to determine if this is the correct time frame and from whence it comes. A proposed amendment will be drafted to make the costs of confinement beyond that time a charge against the appropriate department of state government. The bill will then be referred to the Senate Committee on Finance.
Senator James opened hearing on S.B. 7.
SENATE BILL 7: Provides for transfer of person arrested on misdemeanor warrant from local detention facility to law enforcement agency that obtained warrant. (BDR 16-445)
Senator James advised this is another bill dealing with costs of confinement, requested by the Las Vegas Metropolitan Police Department.
Captain Randy Oaks and Director Joseph K. Evers of the Las Vegas Metropolitan Police Department presented oral testimony. Captain Oaks advised this bill deals with in-state warrant arrests where they are detaining a person subsequent to a warrant issued by another jurisdiction. This is a jail depopulation effort which they feel should accomplish as much as possible before they go to the voters asking for a 500 bed extension of their county jail, which they have tentatively set for June of this year. This bill also contains the error contained in S.B. 6. The agency could not take custody of their prisoner in less than 48 hours and would ask that be changed, and with some negotiation with other agencies, it become "within 72 hours". With approval of the chairman, he would like to make that change on lines 12 and 18.
Senator James confirmed the change from "48 hours" to "72 hours".
Captain Oaks and Mr. Evers had discussed this matter with several representatives of local agencies, none of whom voiced opposition. The cost recovery is simply a trigger mechanism, or incentive, to encourage those agencies (including his when they have persons detained by other jurisdictions) to take custody of their prisoner in a timely manner.
Senator James advised the following occurs here as well as in S.B. 6: "if the law enforcement agency fails to take custody of the prisoner within the time required in this section, the sheriff", etc. " If there were no other criminal charges pending or warrants outstanding the sheriff may release him from custody."
Captain Oaks stated at least in this case a misdemeanor is the offense. Hopefully that person is not a threat to society.
Senator James read part of section 1, subsection 1, " . . . the prisoner for arrest of a misdemeanor offense."
Senator Jacobsen asked if there now exists a time limit for holding a prisoner.
Mr. Evers believed there was, in the case of a felony, unless the person is a fugitive. Persons charged with misdemeanors to his knowledge have been held for a week, sometimes longer before the jurisdictions have come to Las Vegas to get them.
Senator Shaffer asked what the provision is regarding unlawful arrest.
Mr. Evers advised they arrest the subject on the warrant issued in their jurisdiction. They are simply executing service of that warrant.
Senator Shaffer inquired if this lays ground for the individual to come later indicating false arrest.
Captain Oaks answered as long as the arresting officer acted on good faith that a warrant was issued for the arrest of this person, that warrant is an order by a magistrate to place that person into custody. There would be no recovery for false arrest.
Mr. Evers added if they have not taken the individual before a magistrate within 8 days, he must be released from their custody.
Senator Shaffer asked if in this case, a person is confined with the general population.
Mr. Evers replied the person is classified consistent with the need for security and is held in the general population.
Senator James asked if there was a fiscal note prepared, the cost is being shifted to other local governments, even though everyone must pay their share of this cost.
Captain Oaks was not aware what the fiscal note may be, inasmuch as it would be a positive fiscal note on the part of the agency more quickly being able to transfer the prisoner. It may be, although he doubted it, a negative fiscal note on the other agency. He believed once the person was back in custody of the agency issuing the warrant, he or she would be brought before a magistrate within the same number of days.
Senator James read from the bill, "The board of county commissioners of the county or the governing body of the city or town shall determine these costs and charge the law enforcement agency for each day of confinement after the..." certified letter is received, "including the day the law enforcement agency takes custody...", and stated this is a negative fiscal impact on the law enforcement agency, including Captain Oaks' agency.
Captain Oaks agreed. Assuming they did not take custody within 72 hours, or chose not to bring that person back to their jurisdiction, based upon the seriousness of the warrant. They can simply tell the holding agency they do not want that person unless they are in their jurisdiction, at which time the person would be released. They do not want the fiscal impact. It is almost impossible to determine what the impact would be.
Senator Jacobsen advised the committee has the capability to develop the fiscal note and suggested one be requested.
Senator James will make this request.
Jim Nadeau added the Washoe County Sheriff's Department agreed with the change in the language. From their prospective, is a two-edged sword. Not only do they have to pick up an individual who may be in another agency's custody, but if Washoe County has a person in its facility, they are looking for people to expeditiously pick up prisoners.
Paul McGrath stated the Nevada Sheriffs and Chiefs supports this bill.
David Sarnowski, Attorney General's Office, said (regarding this bill and the one previously heard), it seemed this body, if it enacts legislation, could head off a lot of fighting and court battles by specifying a set figure rather than allowing one jurisdiction to decide what figure it will bill another. Costs differ somewhat throughout jail facilities in Nevada. With respect to this bill he believed the language is at least arguably problematic on line 19 regarding the law enforcement agency obtaining the warrant is in the same jurisdiction. State entities residing in jurisdictions throughout the state; for example the Highway Patrol, Public Service Commission, arrest people from time to time. He believed there are some gaming violations which are less than gross misdemeanors. His concern was for this body to express its intent that if the language means the Highway Patrol arrests someone for a traffic offense in Washoe County it will not become part-and- partial of this come-pick-them-up-system. The offender must be jailed somewhere; the Highway Patrol does not run individual jails, nor does gaming.
Senator James believed this seemed to be covered. If it is a statewide law enforcement agency having concurrent geographic jurisdiction it would be within the jurisdiction and it would not apply.
Mr. Sarnowski agreed it read logically, but had misgivings as it was not clear and the intent of the committee should be specified. If the intent was the Highway Patrol does not get billed if the arrest was made in the county's jurisdiction where they had patrolled, then so be it.
Senator James stated this was his understanding, and appeared to be the consensus of the committee. The chairman sympathized with Mr. Sarnowski's remark about the per diem charge and perhaps avoiding problems regarding overcharging if there was a uniform per diem or at least a mechanism in the statute to adopt one. Possibly it costs more to keep someone in Clark County.
Mr. Sarnowski believed if not specified in the statute the body could designate an administrative regulation-making process regarding the other bill discussed, with the state as the bill payor. He questioned who would or should have the entitlement to make that process.
Paul McGrath, Sheriff of Carson, requested indicating actual costs in the bill. Each jurisdiction must determine actual cost to house a prisoner; this would allow for escalation. Metro is at $70 per day; Carson $51; Washoe County $55. If actual cost is stated, jurisdictional billing will justify that cost.
Senator James suggested in section 1, subparagraph 3, line 8 changing "shall determine" to "shall determine such costs, which shall not be more than the actual costs."
Mr. Sarnowski agreed this was a start, but could not speak for the bill payors and the state executive branch.
Senator James said that is with respect to S.B. 6, where the state government is paying. In this bill the local government is paying. The committee needs to determine language and place it in both bills. S.B. 6 is going to the Senate Committee on Finance; they can determine if this is an appropriate way to charge the state. With this language, the amendment will be made here and a fiscal note will be prepared so the Chairman and other committee members can see the impact on respective local governments.
Senator James confirmed this will address everyone's concern, and confirmed with legislative counsel action to be taken.
Senator Jacobsen asked if there is indication where the law enforcement agency has failed to pick up persons.
Mr. McGrath replied some delays occur but generally the agencies work with each other. A person is only released when, as an example, they notify Metro on one of their warrants, Metro states they do not want the person, and Carson releases them.
Senator James advised the Reno Police Department had not replied regarding the effect on local government. Nile Carson, Deputy Chief, Reno Police Department, advised the fiscal note itself has not been returned, however, based on current practices of traveling throughout the state to pick up prisoners, he cannot see a change from what it is currently. They do not run a jail and try to assist Washoe County in keeping their prisoner count down. He stated this bill really benefits the county jails in the area. He believed one thing possibly missing from the bill was the ability to either contract or make arrangements with the state prison system, or others who travel the state transporting prisoners, thereby saving the cost of sending an officer and renumerating on a space available with the state prison system if they could bring them to Reno. He believed they are missing a chance of sharing some resources that would save everyone some money.
In reply to Senator James' question, Mr. Carson replied this could be dealt with separately under another bill, although time constraints in picking up prisoners were being discussed. It was an alternative at that time for doing this within Nevada, and he did not think it had been addressed in the state.
Senator McGinness understood where someone from Lincoln County when notified they had a prisoner in Reno, would find it difficult to get that prisoner. He believed this was a good consideration for which something should be worked out for the rural counties. Even someone in Winnemuca, if short staffed, would find this a hardship on short notice.
Mr. Carson advised every time they transport a prisoner they consider the option of sending their people via commercial aircraft or their own departmental aircraft, and then selecting the least costly. This bill would give them a third option for the least costly alternative, and he believed would apply to almost everyone in the state.
Senator James agreed this is an appropriate area to be addressed, but did not believe this is the appropriate bill with which to address it. He suggested perhaps this issue needs to be addressed in a broader manner.
The Chairman clarified for the record: "To have the amendment of the bill reflecting the 'within 72' language; secondly to have the fiscal note provided to the committee; and third to have the amendment prepared indicating the costs to be charged are the actual costs of the confinement. The other bill which should be "actual costs" is S.B. 6. The amendment proposed with respect to that bill would change the period of time to 7 days, if that is what the statute says, and also reflect the actual costs. Both of these bills will brought back before the committee to adopt S.B. 6 and refer to the finance committee; and for S.B. 7 to consider with the fiscal note."
Senator James opened the hearing on S.B. 8.
SENATE BILL 8: Requires notice to operator of jail and opportunity to be heard before issuance of court order altering conditions of confinement of prisoner. (BDR 16-440)
This bill was requested by Las Vegas Metro. Senator James questioned the bill's constitutionality. The statute reads "each sheriff of a county has charge and control of all prisoners committed to his care, and the chiefs of police and the town marshals in the several cities respectively have control over the prisoners committed in their care". The provision proposed would state, "except in an emergency a court shall not issue an order which affects the conditions of confinement of any prisoner in a county, city or town jail, unless the sheriff, chief of police or town marshall of that jail has prior notice of the intention of the court to enter the order and an opportunity to be heard on the order and an opportunity to be heard on the issue." It goes on to say "any order issued in violation of this subsection is not binding on the operator of the jail," and discusses the "conditions of confinement being including but not limited to prisoner's access to the law library, privileges regarding use of the telephone, types of meals provided to the prisoner, and the provision of medical care provided in situations which are not emergencies." That was essentially the amendment, the remainder would change the subsections to add this one.
Senator James' concern was the legislature usurping the judicial power by telling a court what it can do and saying it must give this notice, essentially saying the order of the court is not binding. That is even a further step; there are two tiers. He advised the constitution, Article 3, section 1 is heavily noted with cases. One of them, for the record, "is the decision in Watson vs. Merialdo which held that the legislative and executive branches are prohibited from assuming any judicial power or impeding functions of the district court"; and the court's language was that "the legislative branch and executive branch are prohibited from directing, controlling or impeding district courts in their functions." Senator James wanted to get to the heart of the issue, as to whether or not the committee would be acting unconstitutionally if this was passed.
Captain Randy Oaks and Director Joe Evers, Las Vegas Metropolitan Police Department, presented oral testimony. Captain Oaks stated it seemed reasonable simply to mandate the director of the facility have an opportunity to be heard on the issue. There may be some facts unknown to the judge at the time he issues that order, causing him to order otherwise.
Director Evers stated out of frustrated aggravation, he approached the district attorney and requested this action. Several Nevada Supreme Court decisions regarding jails basically say the courts must give jailers wide range and deference to run their institutions; that a jailer need only show that what he does has a penalogical interest, is done in good faith, and is done with no malicious or deliberate difference toward any prisoner. All they are trying to do here is say to the courts before an attorney presents pre-typed order for the judge's signature. Mr. Evers believed he has a right to be in a position to argue his position and hear the other side argue what they feel is a deprivation to that prisoner, as opposed to someone simply telling him to comply with an order already signed. The impact of the current system is hours of overtime; for example his officers taking the person to a specialist when the facility doctor who is licensed to practice medicine has said it is not necessary. Many times Mr. Evers will speak to the judge by telephone and the judge will modify the order verbally.
Senator James asked how these orders arise. Is it normally a writ of habeas corpus?
Mr. Evers answered it is much less formal and the conditions of confinement are not challenged.
Senator James asked if the litigant doesn't come before the judge through counsel. What is the legal mechanism used to invoke jurisdiction of the court to review the conditions of confinement?
Mr. Evers answered generally it is the result of an inmate complaining to his attorney that he is not receiving something he thinks he deserves, or should get. The prisoner's counsel drafts a motion and order regarding this complaint.
Senator James believed it seemed if a substantial change is made in the conditions of someone's confinement on whatever basis, the court would be acting on some kind of constitutional or statutory ground to say the judiciary has the power to say the prisoner has a right to whatever he is asking: additional medical attention or access to the law library, or whatever, and the court would act on that ground. From Mr. Evers' testimony it appeared the state agency does not have the constitutional due process right, which is what they were requesting. Senator James' concern was whether the legislature could do this, and whether this provision exists elsewhere in the statutes. He asked Mr. Neilander to research this question, and advise the committee. Other cases exist where the legislature attempted this type of thing and it was declared unconstitutional. This is what he was attempting to avoid with this bill.
Mr. Evers provided additional oral testimony to clarify he desired this, not only to go to court and argue his position, but also to have sufficient time to consult counsel and obtain the necessary documents to make an argument.
Mr. Evers responded to Senator James' question saying these events are not at all rare. It is not unusual for him to spend several weeks a year in court over those issues. Many of them are housekeeping issues.
Senator Jacobsen asked if a judge outside Mr. Evers' jurisdiction can direct him to do something in this regard?
Mr. Evers was not sure. If so, he would try to accommodate.
Senator Jacobsen was more concerned with the rural county judges. Sometimes they do not have the facilities. He asked if Mr. Evers had the right to tell the judge he couldn't accept the order.
Mr. Evers did not know if he has a right. He probably had more of an obligation to be honest with them, and he deals with North Las Vegas and some of the other judges regularly. He believed have a pretty good working rapport.
Mr. Neilander stated, regarding the constitutionality of the bill, there are two issues. The first is notice. Their concern is if there is a fine-line decision, how defensible would it be for the legislature in court. Requiring a court to provide notice in these cases initially seemed to him at least defensible. The second issue is making a court order void, which he believed clearly unconstitutional. By statute the legislature cannot be authorized to have a public entity ignore a court order when that court order is based upon interpretation of the constitution. The bottom line is a phrase used in these cases which is "inherently within the purview of the judiciary". Interpretation of the constitution in criminal matters is inherently within the purview of the judiciary. He will consult with Mr. Malkiewich and report back to the committee.
Mr. Neilander took this opportunity to explain his role during the session. He will be glad to respond to any legal issues. On constitutional issues, he will research the issue and consult with Lorne Malkiewich. There are always varied opinions on these issues, and they need to have one person making decisions in the interest of consistency.
Senator James' concern is facing a writ of mandamus to force the court to give the procedural protection provided in the bill if the language of concern is removed. That would be taking the teeth out of the statute. The committee will get the opinion and decide if the legislature can defend requiring the court to provide notice. The decision will then need to be made whether this should be done, or if the constitution should be amended, changing the judiciary's function in this regard.
Mr. James Jackson, Nevada State Public Defender provided oral testimony. He was not sure he agreed the only remedy would be mandamus. He believed the jail, when faced with a situation like this, could simply contact the district attorney and request or file a motion for rehearing. He thought at least at the point the court would be somewhat obligated to provide an opportunity to be heard. He agreed that saying an order of a district court is void in and of itself is getting a little far afield of the constitution, and would create some major problems. His description of this would be a prior restraint of judicial discretion. He does not believe this can be done. He understands the concern in Las Vegas but in his own experience in Carson, if he was to give an order such as that to either of two district judges here, he would probably either be summarily thrown out or at least be informed could not do that. He could ask, but not order. Mandamus would lie if no remedy could be obtained.
Senator James agreed, but the intent of the bill is to avoid that. A motion for rehearing can always be made.
Senator James asked for any further testimony. There being none, the meeting was adjourned at 4:02 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
January 27, 1993
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Senate Committee on Judiciary
January 27, 1993
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