MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 10, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:05 a.m., on Wednesday, March 10, 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 Mike McGinness
Senator Raymond C. Shaffer
Senator Ernest E. Adler *
COMMITTEE MEMBERS ABSENT:
Senator Lawrence E. Jacobsen (Excused)
Senator Dina Titus (Excused)
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Doug Dickerson, Lobbyist, City of Las Vegas
Martin Stivers, representing Rosi Jones & Associates
David F. Sarnowski, Deputy Attorney General, State of Nevada,
Office of the Attorney General
Michael S. Gach, Security Manager, Macy's of California, Inc.
Rod King, Member of the Public
Pat McGaffin, Lobbyist, State of Nevada, Department of
Prisons
Mary Santina, Lobbyist, Retail Association of Nevada
Ben Graham, Lobbyist, The Nevada District Attorney's
Association
Marvin Leavitt, Lobbyist, City of Las Vegas
* If committee members are only present for a portion of the meeting, this is noted in the body of the minutes.
Senator James opened the hearing on Assembly Bill (A.B. 49).
ASSEMBLY BILL 49: Requires judgments of conviction and imprisonment and amount and terms of any fine, restitution or administrative assessment.
David Sarnowski, Chief Criminal Deputy, State of Nevada, Office of the Attorney General, provided oral testimony in favor of A.B. 49. Mr. Sarnowski advised this was a proposal which his office submitted for drafting by the bill drafters. He believed this would assist a number of their clients in the administration of the criminal justice system by requiring a sentencing, district court in the state of Nevada, to include on a judgment of conviction a number of things in addition to those things already required by statute. He referred to the additions on lines 11 and 12 on page 1 and again on lines 6, 7 and 8 on page 2 of the bill. He advised, essentially while the courts in many cases did include the things they had asked to be added to the statute, in other cases those things were not included, and they are asking for uniformity in the area to allow the department of prisons, the department of parole and probation, the board of prison commissioners and in a slight number of cases, the board of pardons commissioners to have similar information contained within the four corners of the documents issued by the district courts. He understood there was no opposition in the assembly to this requirement and in many cases, the district attorneys were tasked with the job of including that information. He further advised those judgments followed the prisoners from their entry into the system, whether it be on probation or into the department of prisons and then on parole, to the expiration of their term of discharge on parole or probation. He asked the committee give favorable consideration to the amendments.
Senator James asked if this bill would help people who were entitled to restitution also, as it would then be in the judgment.
Mr. Sarnowski agreed it certainly should, as the department of prisons and the department of parole and probation each had a hand in collecting restitution and paying it out, to the victim, usually through parole and probation.
Mary Santina, Lobbyist, Retail Association of Nevada, provided oral testimony. She stated the association was in support of A.B. 49 because of the restitution provision, and agreed in total with Mr. Sarnowski's testimony.
Senator James confirmed there was no further testimony on A.B. 49, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 52.
ASSEMBLY BILL 52: Imposes civil liability for value of certain stolen property and damage to certain property. (BDR 15-99)
Ms. Santina, provided oral testimony. She advised A.B. 52 was requested by the retail association and introduced by Assemblyman Sader. She stated the bill passed unanimously in the Assembly Committee on Judiciary, and again on the floor. She advised Ernie Cunya, the Executive Director of the Employers' Association of Nevada wished to testify, but had to leave. She noted Mr. Cunya did testify in favor of the bill in the assembly committee and gave Ms. Santina the authority to represent his association and lend their support.
Michael S. Gach, Security Manager of Macy's of California, Inc., in Reno, Nevada provided oral testimony in support of A.B. 52 on behalf of the retail association. He advised a variety of people had been present to testify, but because of time constraints, they had to leave for other commitments. He stated for the past 23 years he had worked in the investigative field as a security manager for large corporations, as a private investigator and a police officer. His experience was that victims of economic crime rarely recovered the value of items stolen or destroyed by criminals, even when the perpetrator of the crime was caught and convicted. He advised victims of economic crime continued to be victimized by a system which worked in theory but rarely worked in reality. He further advised that judges ordered criminals to make restitution and the department of parole and probation attempts to collect restitution, however the department of parole and probation was only permitted to use a probationer's wages when determining how much restitution their client can pay, even if the convicted person had substantial assets. He stated normally only a token amount was returned to the victim, and over a long period of time. Further, in a major economic loss, criminals almost always complete probation owing victims large amounts of money. He stated there were two major parts to A.B. 52: section 1 made convicted persons civilly liable upon conviction for crimes of burglary, larceny, fraud and property damage when property was not recovered or was not in its original condition. He said the prosecutor was responsible to notify the victim that the person was convicted and how much of a judgment had been awarded, and that a judgment under A.B. 52 was good for 6 years and was renewable for an additional 6 years. Collection of the debt was the responsibility of the victim. Part 2 of A.B. 52 was an extension of the Nevada shoplifting laws, which permitted merchants to file suit for from $100 to $250 against shoplifters who steal merchandise from a merchant. A.B. 52 extended that law to cover persons who damage a merchant's property. Mr. Gach stated there were many good reasons to pass A.B. 52, and the ones he mentioned were just a few. He stated the bill made convicted persons financially responsible for their crimes, empowers victims to recover money stolen from them, and provided an incentive for victims to prosecute criminals instead of just looking the other way. That would prevent other people from victimized. He further stated A.B. 52 had no financial impact on government. He urged the committee to pass the bill.
Senator James read from the bill: "The value of the property must be determined by its retail value or fair market value at the time the crime was committed." He asked which value would be used.
Mr. Gach advised this was currently in the law, and that the retail value was the fair market value of the property.
Senator James asked then why both are stated in the bill, saying retail value or fair market value.
Mr. Gach replied he believed it dealt with damage.
Senator James responded the shoplifting law, in section 2, dealt with damaged property. He read from that section, "An adult who steals merchandise or damages property on a merchant's premise is liable for . . ." and it used to say "the retail value of the merchandise." He stated evidently in the assembly "or fair market value of the other property" was added. He then advised for that statute it was the retail cost of merchandise and the fair market value of other property damaged. He then asked regarding section 1.
Ms. Santana responded that was an amendment added on by Assemblyman Scherer, whose suggested language was that not everything comes to $250, therefore he added the words "or fair market value". She stated the assemblyman asked them at the time if they would object and they replied they would not.
Senator James stated Dennis Neilander, Senior Research Analyst had advised him the assembly added the amendment in section 2, but section 1 was always as it appeared currently. He asked if that was her recollection. He advised what was usually done in the law when a choice is given was to say which choice it was, for example whichever was greater or whichever was less. However, this was not stated in the bill, but just said, "the value of the property must be determined by its retail value or fair market value at the time the crime was committed." Senator James referred to the statute listing grand larceny, burglary and theft from a vending machine. Therefore, if a vending machine was smashed and all the money taken, the perpetrator was already liable for the money. A.B. 52 would make the person liable for smashing the machine as well. Under the Assembly amendment it would be the fair market value of the vending machine.
Mr. Gach replied he believed if the theft was specifically from a retail store it would very easy to determine the numbers. However, when it was a problem with an individual, for example in the case of a burglary, that might not be as easy to determine.
Senator James stated it was up to the proponents, however, he believed it was a problem. If he was a defendant's lawyer, he would say in each argument that the judgment should be for some lower value, as the language states "or fair market value." He supposed he could say the language states retail value or fair market value, and what the store places as retail value was not the fair market value because someone else sold the item for less. He believed the language was a confusing.
Mr. Gach stated he did not know the answer to Senator James' question.
Ms. Santina stated her organization was comfortable with the chairman of the senate judiciary committee adding that amendment. She stated the question had not come up previously regarding the determination and how difficult it would be for a defense attorney to break it down. She stated she would have to talk to Assemblyman Scherer.
Senator James stated he understood the amendment in section 2 of the bill. He believed Assemblyman Scherer noticed when the addition was made to line 19 " . . .or damages property . . ." the damaged property might not have a retail value and therefore a fair market value was needed. He stated that sentence meant it was the retail value of merchandise of the fair market value of the other property, which made that clear, and there was no problem with that section. He believed the problem was in section 1, subsection 1, number 1 where it gives a judgment, saying ". . .is civilly liable for the value of property stolen and not recovered. The section further states ". . . that value must be determined by its retail value or fair market value at the time the crime was committed." Senator James believes possibly it should say "whichever is greater".
Ms. Santina said it sounded as if the bill was being amended up again, and she would certainly support that.
Senator James asked, if the person had been damaged, would they not be entitled to the highest value which could reasonably be attached.
Ms. Santina asked if the language would have to read, "whichever is greater not to exceed". She was under the assumption there was a statutory limitation of $250.
Mr. Guch stated that was incorrect.
Senator James replied, for example, if someone broke into a house and took thousands of dollars worth of property, there was no limitation.
Ms. Santina stated she would support that amendment.
Senator James asked if any member of the committee had objection to an amendment of that nature. Hearing no objections, he stated he would ask Dennis Neilander, Senior Research Analyst, to draft the amendment. He asked that, as part of the amendment a statement be made as to how the retail value was readily discernable.
Senator James confirmed there was no further testimony on A.B. 52, and closed the hearing.
Senator James opened the hearing on Assembly Bill (A.B.) 65.
ASSEMBLY BILL (A.B. 65): Allows testimony given before magistrate at hearing or examination to be administered at trial if witness persistenly refuses to testify despite order of judge to do so. (BDR 14-586)
Ben Graham, Legislative Representative, Lobbyist, Nevada District Attorney's Association, provided oral testimony. He advised A.B. 65 is about testimony presented at a preliminary hearing. During this type of hearing, the state must put on sufficient evidence to bind a person over to trial in district court. He stated normally a defendant never testifies at a preliminary hearing. He further stated the state calls witnesses to establish probable cause, which is facts and information sufficient to lead a reasonable person to believe a crime has been committed, and that a certain person probably committed the crime. He advised the defendant and the defendant's attorney is present, and the witnesses are cross-examined by the defense attorney. He said the preliminary hearing is a great discovery tool for the defense, as they are able to see the witnesses, to develop possible lines of defense, to cross-examine and test the credibility of witnesses. He stated, if the case went to trial under the current law, and a witness who testified at the preliminary hearing cannot be found by the state, is out-of-state or is dead, the state may introduce the preliminary hearing testimony of the witness who was cross-examined. What his organization was asking under A.B. 65 was to add one additional instance where preliminary hearing testimony may be used. This would be the instance where a witness testified at the preliminary hearing, was cross-examined, but now refuses to ttestify when the matter goes to trial. He stated in a lot of cases handled by his department, it was difficult to get witnesses to testify. Sometimes, the witness can be convinced to testify at the preliminary hearing, and his department sends an investigator or the police, and occasionally, friends or relatives of the witness will bring them in, and the judge determines there is sufficient evidence to hold the matter to trial. He advised between the time of the preliminary hearing and the trial, all sorts of pressures are brought to bear against the person who testified. These pressures can come from the defendants friends, relatives, who frequently will go and talk the person out of testifying. The witness will then tell the judge to put him in jail if he must, but the witness will not testify. He stated under those circumstances, the state would like to have the opportunity, since that witness is in effect no longer available, to use the preliminary hearing testimony. He advised an argument that had been set forth was, frequently in a preliminary hearing the defense attorneys stated they did not examine the witness as much as they would at trial. He said if the witness were dead, out of state, or unavailable, the testimony from the preliminary hearing could come in. He felt this should also apply to a witness, who having testified at a preliminary hearing, now refuses to testify. He stated, the defense had the right of cross-examination at the preliminary hearing and taht testimony should be allowed at trial. He believed the reason this instance was never added to the statute before was because 10 or 15 years ago is because the pressures were not present, which are present now. Further, at that time, if a person was told he or she would be put in jail, they would have testified, where now they are afraid to testify.
Senator Adler entered the hearing at 11:20 a.m.
Senator Smith stated he had a problem concerning the language on page 2, line 4, regarding a dead person persisting in refusing to testify.
Senator James suggested, and Mr. Graham agreed, that the comma and the "or" in the sentence should be moved to correct the misconception.
David F. Sarnowski, Deputy Attorney General, State of Nevada, Office of the Attorney General, stated the majority of the cases to which Mr. Graham had referred were litigated by the district attorneys' offices. He added that one class of case in which his office encountered similar reticence was inmate crimes, the class over which his office had primary jurisdiction. He stated on more than one occasion where his office had been persuasive in getting an inmate victim or percipient witness to testify during the preliminary hearing, it had occurred that after that time, the inmate witness had great pressure brought upon him or her to "do the right thing" and not breach the code which was followed from time immemorial within the prison walls, which was "you don't be a snitch". He further stated that to inmates, the snitch was the lowest form of life inside a prison environment, and therefore his department was faced with the possibility of having to jettison not only a good case but in many instances a very important case such as a homicide or attempted homicide. Therefore, his department believed the provisions in A.B. 65 would be appropriate. He agreed with Mr. Graham's testimony that the provision only applied where cross-examination had occurred and did not apply where the prosecution chose to seek a grand jury indictment at which there is not really the same type of cross-examination and confrontation which occurs in a preliminary hearing, therefore limiting the class of cases. He stated the fact that a witness could be found in contempt and jailed, especially in an inmate case, was of no importance to the witness, since they would rather live to fight another day than breach the code.
Senator James asked Mr. Graham if the witness was told at the preliminary hearing that their statements under oath could be used in a later proceeding. He was aware the witness was not the one on trial, but was thinking about the prisoner situation.
Mr. Graham replied he had actually told people if they would testify, there was a 95 percent chance the matter would be concluded and they would not have to come back. He advised the witness was not told, as a routine practice, that if they were dead, out of state or they could not be located the department could use the preliminary hearing transcript.
Senator Adler stated he had previously been a deputy attorney general and could very well relate to this problem. He believed the addition benefitted the prosecution, but also that prosecutors, as a matter of strategy like to put on as little evidence as possible in a preliminary hearing. He said, with A.B. 65, especially with inmate cases or people who were in prison with long sentences, the prosecutor was going to have to put out their full case in the preliminary hearing, because they would always be worried the witness would make themselves unavailable at the time of trial. He stated in a way, defense counsel was receiving a lot more information than they normally would receive in a preliminary hearing, and as a matter of strategy, it cuts to their advantage to a certain extent to have this rule. He did not believed it was all one-sided in terms of how the bill was being presented.
Senator James stated the provision applied to both the defendant and the prosecutor.
Mr. Graham agreed with this assertion.
Senator James suggested changing the language in the bill at line 4 on page 2 to read, ". . .when the witness is sick, out of state, dead, persistent in refusing to testify despite an order of the judge to do so or . . .". He advised this would get rid of the "or" and put a comma after "state".
Mr. Graham asserted his approval with this change.
Mr. Sarnowski added, even if the prosecutors try to put on as little evidence as possible, it had been his experience in most justice court proceedings that the justice of the peace would give a fair amount of latitude to defense counsel to inquire, cross-examine and essentially to do discovery. He also commented that it was a breach of ethical rules which govern his department's conduct and that of defense counsel, for anyone to suggest to a witness that they ought not to testify. He added there was an exception which applied for the protection of defendants, that a defense attorney could suggest to a family member that it would not be in the best interests of the defendant for them to testify. He added, however, that prosecutors were strictly limited in what they could say, which essentially was they told witnesses it was their personal choice to talk to the defense or not to talk to the defense, but if they are subpoenaed by either side they must honor the subpoena and answer truthfully any questions put to them.
Senator James confirmed there was no further testimony on A.B. 65, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 67.
ASSEMBLY BILL 67: Authorizes city or county to designate parking enforcement officers to prepare, sign and serve citations for violations of parking ordinances. (BDR 14-862)
Doug Dickerson, representing the City of Las Vegas, provided oral testimony. He stated A.B. 67 was requested by the City of Las Vegas. He advised they were asking that parking enforcement officers be added to Nevada Revised Statutes (NRS) 171.17751. He further advised that currently the chief officer of the fire department or his designated inspectors of solid waste management, building inspectors, housing and license inspectors, zoning enforcement officers, animal control officers, and traffic engineers had the authority to prepare, sign and serve citations. He stated since parking violations were written as a misdemeanor charge and when heard in court become a civil infraction, it became necessary to designate parking enforcement officers as officers with the authority to prepare, sign and serve citations on persons violating a county or city ordinance. He advised the purpose of the request to amend NRS 171.17751 to include parking enforcement officers as one of the employees of local government with the power to issue misdemeanor citations, was to vest those employees with the authority to carry out not only local city ordinance provisions, regarding parking enforcement regulations, but state parking regulations incorporated as misdemeanor offenses as well. He advised NRS.268.018 provides, except when specifically prohibited by law, an incorporated city, by ordinance, may establish as a city misdemeanor offense, any offense which is a misdemeanor pursuant to the laws of the state of Nevada. He stated the city had enacted such an ordinance in Las Vegas Municipal Code 10.02.010. He further stated that without the authority to issue misdemeanor citations, city parking enforcement officers could not enforce state misdemeanor infractions. He cited an example of the state's regulation for parking next to a fire hydrant. Those provisions had been incorporated by the city, but since it was a misdemeanor infraction to violate said provisions, city personnel who were not peace officers could not issue a parking citation. He wanted to make clear the fact that A.B. 67 would not vest parking enforcement officers with peace officer status, nor would it expand their jurisdiction. He advised A.B. 67 merely gave the parking enforcement officers the tools necessary to carry out statutory and city code provisions regulating parking enforcement which are already in effect.
Senator Adler stated currently parking officers gave municipal citations for municipal code violations, and asked for clarity if all A.B. 67 did was to give the misdemeanor NRS citations as well.
Mr. Dickerson answered that was true.
Senator Adler stated he was not aware there were parking violations not covered by the municipal code.
Senator James said he was thinking of possibly the handicapped law.
Senator Adler replied that was a state law.
Senator James asked for and received confirmation that Mr. Dickerson had mentioned fire hydrants. He stated the bill in line 8 said, ". . .county or city ordinance," meaning the officers were allowed to serve citations on persons violating a city or county ordinance.
Mr. Dickerson believed NRS 268.018 states, "An incorporated city by ordinance may establish as a city misdemeanor any offense which is a misdemeanor pursuant to the laws of the state of Nevada". He believed this meant they could use the state laws also.
Senator James stated it becomes a city ordinance once they adopt it. He was asked if parking officers now did not have the power to issue a parking citation.
Mr. Dickerson replied they do have that power, under the city ordinance, and all they were asking is that it be added to the group that already had that same power. He added for some reason that had been left out over the years. They do not believe it will change anything, and it will only give them the same authority as other employees have.
Senator Adler stated Senator James had a good point. He advised, referring to "solid waste management," the legislature had just amended the solid waste law to allow the counties to enforce state solid waste law, and if A.B. 67 was read literally, the officers would not have any authority to enforce those laws the legislature just allowed them to enforce if it did not say ". . .written citations on persons accused of violating any law, ordinance or regulation or state law." He stated in many instances, county officials were enforcing state law.
Senator James wondered if the bill was doing what was intended. He did not question the intent, but it did not seem to him what was desired would be achieved. He stated the officers already had the power to enforce city and county ordinances, for example people who received parking tickets went to municipal court. That was already the law under whatever city code was being dealt with. He understood Mr. Dickerson wanted to make sure the officers were empowered to enforce the state laws adopted as part of a city code. He asked since it was is already a part of the city code, why could it not be enforced like everything else.
Mr. Marvin Leavitt, Lobbyist, City of Las Vegas, provided oral testimony. He stated they had experienced several problems in municipal court where the judge referred to this particular section indicating parking enforcement officers were not listed along with all of the rest who are listed, and because of that the citation was defective. One of their purposes in proposing the bill was to eliminate any possibility the citation would be defective because all of the officers not being specifically enumerated in the list of those kinds of officers who could write those citations.
Senator James asked in which chapter and title this was found.
Mr. Dickerson answered NRS Chapters 171 and 175.
Senator Adler still believed the bill would be cleaner by adding "by state law." He stated if then there was a citation which did not affect the municipal ordinance but only referenced the NRS code, it would be covered, even if the officer had technically made a mistake. He stated then, if the use of the other section was desired, to incorporate into the municipal codes, that would be fine. He believed there was a loophole unless it said "state law."
Mr. Leavitt stated they would have no objection to that phrase being added, as it would clarify the language.
Senator Adler recalled the solid waste law, as passed out of Senator Smith's committee, the federal requirement under the Resource Conservation Recovery Act (RCCA) required the counties to directly enforce the state law, and not a municipal ordinance. Therefore, the new solid waste state regulations could not be enforced if the bill does not have direct enforcement of state law.
Senator James had no problem with the addition. He advised A.B. 67 would be voted on in an upcoming work session and stated he would have Dennis Neilander, Senior Research Analyst, to review the bill to be certain that what was desired was being accomplished.
Mr. Leavitt advised they would appreciate this, and that they obviously did not want to see a bill passed which would not work for them.
Senator James confirmed there were no further questions or testimony on A.B. 67.
Senator James advised the committee he had received several Bill Draft Requests (BDRs) from the committee, which had been received from the department of parole and probation, the attorney general and Las Vegas Metropolitan Police Department. Senator James advised he would read the BDR numbers and a brief summary, and then would ask for a motion on all of them collectively.
(BDR) 16-518: Makes various changes to provisions governing victims of crime.
(BDR) 16-667: Eliminates requirement for unnecessary reports to department of prisons concerning offenders in residential confinement.
(BDR) 2-505: Prohibits denial of attorney's fees and costs in civil action solely because prevailing party is state, local government or public officer or employee.
(BDR) 15-1307: Requires department of motor vehicles and public safety to issue permits to carry concealed weapons under certain circumstances.
(BDR) 16-714: Authorizes board of county commissioners or governing body of incorporated city to seek reimbursement for expenses incurred for supporting and maintaining prisoners in county or city jail or detention facility.
SENATOR SMITH MOVED THAT THE COMMITTEE INTRODUCE ALL OF THE FIVE ABOVE-REFERENCED BILL DRAFT REQUESTS.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION WAS CARRIED. (SENATORS TITUS AND JACOBSEN WERE ABSENT FOR THE VOTE.)
There being no further business to come before the committee, Senator James adjourned the meeting at 11:45 a.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
March 10, 1993
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