MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      March 22, 1993

                             

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on Monday, March 22, 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 E. Adler

 

GUEST LEGISLATORS PRESENT:

 

Senator William R. O'Donnell

Assemblyman Wendell P. Williams

Assemblywoman Stephanie Smith

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Maddie Fischer, Primary Secretary

Marilyn Hofmann, Committee Secretary

 

OTHERS PRESENT:

 

Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving (MADD)

Anne B. Cathcart, Deputy Attorney General, State of Nevada, Office of     the Attorney General

Marsha Slotten, Executive Director, National Association of Social      Workers (NASW), Nevada Chapter

Lieutenant Jim Nadeau, Assistant Commander, Incline Substation, Washoe     County Sheriff's Office

Paul N. Conner, Deputy Chief, Detention Services Division, Las Vegas     Metropolitan Police Department

Paul McGrath, Nevada Sheriff's and Chief's Association

Alicia Smalley, National Association of Social Workers (NASW)

Kim Walsh, Private Citizen

Bobbi Gang, Nevada Women's Lobby

 

*     Committee member only present for a portion of the meeting.  This is noted in the body of the minutes.

 

Senator James opened the hearing on Senate Bill (S.B.) 279.

 

SENATE BILL 279:  Provides civil lien for restitution unpaid by criminal defendant.

 

The first to testify was the prime sponsor of the legislation, Senator William R. O'Donnell.  Senator O'Donnell stated the legislation was developed because of an automobile accident which caused the death of a person in Las Vegas.  He said the party causing the accident was sent to prison and later released, at which time the restitution period stopped.  Senator O'Donnell indicated the original language in the statute states, "Payments of restitution must terminate...when the offender is released from prison, except the payments may continue as a condition of parole."  He stated if the payments are not made a condition of parole, they stop.  Senator O'Donnell said there are many victims who find themselves in the same situation.  He  stated S.B. 279 would correct the language to allow restitution to become a lien and could be pursued in a civil action, as in other collection matters. 

 

Senator Adler asked why restitution payments would terminate before the debt was paid in full.  Senator O'Donnell answered there was no rational reason for the law to exist in the manner it does at this time.  Senator Adler suggested the language might read, "Payments of restitution shall terminate when the victim has received the full amount...."  Senator O'Donnell said the problem would be, "No one has jurisdiction...the prison system...the parole department...no longer have any jurisdiction."  He added the only jurisdiction would be civil, and the present law does not provide a method to pursue the issue in that manner.  Senator Adler reiterated his contention the language should read, "Payments shall continue until the victim is paid in full."  Senator O'Donnell expressed his pleasure with Senator Adler's suggestion and stated, "No one should be allowed to just get off scot-free without paying restitution." 

 

Senator James agreed payments should not terminate as it appears is allowed by the language in the present statute.  Senator O'Donnell indicated S.B. 279 would correct the problem. 

 

The next to testify was Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving (MADD). Ms. Jacoboni indicated MADD wished to be on record in support of S.B. 279.

 

Chairman James stated Mary Santina, representing the Retail Association of Nevada, had expressed the association's support of the bill, although she could not be present to testify.

 

There was no further testimony on S.B. 279.  Senator James closed the hearing on the bill and opened the hearing on Senate Bill (S.B.) 291.

 

SENATE BILL 291:  Makes various changes to provisions governing victims of crime.

 

The first to testify was Anne B. Cathcart, Deputy Attorney General, State of Nevada, Office of the Attorney General.  Ms. Cathcart provided the committee members with a letter of explanation, set forth as Exhibit C.  She stated since the present language in Nevada Revised Statutes (NRS) 217.265 was found to be unconstitutional, the attorney general's office has attempted, with assistance of legislative counsel, to suggest a substitute section which they hope will be constitutional and "narrowly tailored to accomplish the goal that we perceive the legislature wanted to accomplish when it first passed the original legislation."  Ms. Cathcart said the new language "...is untested, either in our state or any other state," so she could not make any guarantees as to its constitutionality, but added, "It is the best effort we have at this time." 

 

Senator James referred to line 7 of the bill, which states, "...any material which is a depiction, portrayal or reenactment...," and asked:

 

      If you wanted this to be as broad as possible in netting civil actions that would be to recoup money someone has made from any kind of publicity...is 'depiction, portrayal or reenactment' too narrow? 

 

He said "material" is defined in section 3(a), as "...appearance on a television or radio station and live presentations...," and indicated if a person did the talk show circuit, that would not be a "depiction, portrayal or reenactment."  Senator James asked if that was covered somewhere else under the bill.  Ms. Cathcart answered she would not consider that situation to be a "depiction, portrayal or reenactment," and added the definition appeared to be narrower in section 1 of the bill.  Senator James stated, "Certainly appearing on talk programs would be one way to make some money off a crime, which would not come under the purview of this statute."  Ms. Cathcart said the point was well taken and suggested the chairman talk with Michael Drapkin, a deputy legislative counsel, who prepared the language set forth in S.B. 291.  She said the question posed by Senator James did not arise during her discussions with Mr. Drapkin regarding the legislation. 

 

Senator James referred to the provision which would be repealed if S.B. 291 were to pass, and asked if it actually set up a forfeiture of three-fourths of any value received by an offender, with notoriety as a standard.  Ms. Cathcart agreed and added it was an automatic forfeiture.  Senator James stated this legislation would amend the statute's limitation, but would not specifically create a cause of action, and Ms. Cathcart concurred.  She said if a cause of action were brought by a victim of crime, that victim would have a 5-year limitation of time in which to file that action.  Senator James asked if there would be ways for a person "...to structure some kind of a transaction so that you might have a cause of action and still not be able to reach the proceeds."  Ms. Cathcart answered that was a possibility, since "...people are very creative when they want to be."  Senator James asked if there were any way within the bill to anticipate that situation.  Ms. Cathcart answered she would look into that possibility. 

 

Ms. Cathcart indicated there was another bill in the drafting process which is defined as the "prisoner responsibility act."  She said the legislation will be more general than S.B. 291, and will create a right to access funds received by inmates from a variety of sources.  Senator James pointed to language in section 1 of the bill which provides for an action "...against the person who committed the felony...," and indicated "the first thing a person would do is to form a corporation...with all rights to a story to go to that corporation...."  Ms. Cathcart responded she agreed there could be a potential problem and stated again she would discuss the matter with the deputy legislative counsel.  Senator James said the idea of the bill was excellent, but it needed work.

 

Senator James also pointed to the language in section 3 of the bill which describes "victim" and asked if this definition would include the family of the victim.  He said language to include the family of the victim would be appropriate. 

 

The last person to speak regarding S.B. 291 was Judy Jacoboni, Victim Advocate, MADD.  Ms. Jacoboni stated the mission of MADD was to "stop drunk driving" and to assist victims of Driving Under the Influence (DUI) crimes.  She said DUI crimes may not cause as much notoriety as other violent crimes, but "...it is certainly just as violent, and the victims are just as dead."  Ms. Jacoboni stated the organization felt any proceeds gained from notoriety in this manner should be available to the victim.  Senator James pointed out the victim would have a cause of action against any such defendant by way of a wrongful death action, until the time the statute of limitations had passed, but passage of this bill would protect that victim from a situation where the defendant was not solvent and later gained funds through the sale of a book, for example.

 

The hearing was closed on S.B. 291 and opened on Assembly Bill (A.B.) 174.    

 

ASSEMBLY BILL 174:      Limits right of natural father to custody of or visitation with child conceived as a result of sexual assault.

 

 

The first to testify was Assemblyman Wendell P. Williams.  Mr. Williams stated the legislation was the result of incidents "...which unfortunately have been happening more than we like to see happen around the country."  He said the bill would limit the right of a natural father to custody of or visitation with a child born as the result of a sexual assault.  Mr. Williams said there are mothers who decide to keep a child born under such a circumstance, but wish to have no contact whatsoever with the person who perpetrated the forcible act against them.  He said in one instance, the man who committed the crime sued for custody of the child after he was released from prison.  In that case, he said, the child involved in the matter did not know she was conceived as the result of a sexual assault but was brought into the situation because the mother had to go through a court action to keep the father from the child.  Mr. Williams stated he felt a woman who kept a child conceived as the result of a sexual assault should be protected by legislation, so the perpetrator cannot victimize her again by attempting a custody action.

The next to testify was Marsha Slotten, Executive Director, National Association of Social Workers (NASW), Nevada Chapter.  Ms. Slotten stated the Nevada Chapter of NASW, "a concerned group of professionals who deal with victims," is in favor of A.B. 174.  She said it would be an undue hardship on a victim of rape, if the rapist were allowed visitation or custody rights to a child born of that attack.  Ms. Slotten set forth the association's reasons for denial of visitation rights in a statement, which is attached hereto as Exhibit D.

 

There was no further testimony on A.B. 174.  The chairman closed the hearing on the bill and opened the hearing on Senate Bill (S.B.) 294.

 

SENATE BILL 294:  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.

 

Appearing to speak to this legislation were Lieutenant Jim Nadeau, Assistant Commander, Incline Substation, Washoe County Sheriff's Office, and Deputy Chief Paul N. Conner, Detention Services Division, Las Vegas Metropolitan Police Department (LV METRO).  Deputy Chief Conner stated the budget for the Clark County Detention Center last year was over $31 million, with an average inmate population of 1,415 persons.  He said the taxpayer is "victimized in many ways," not only because of the initial commitment of a crime, but because of the cost of apprehension of the suspect, the cost of prosecution, and the incarceration.  Deputy Chief Conner stated they in government are always looking for ways to reduce costs.  In that respect, they investigated a program utilized in Michigan which is called the "prisoner reimbursement act."  He said in that state, prisoners are billed for a portion of the cost of incarceration.  Deputy Chief Conner indicated S.B. 294 also asked for reimbursement of medical costs.  He said the county now spends over $2 million each year for medical services to inmates, because of an average "sick call" of 600 inmates each day.  He continued, "Over 50% of these inmates are in that sick call to get aspirin, cough syrup...which they can get just because it is available...for no cost."  The deputy chief stated he felt this "puts an unwarranted burden unto our staff, as well as increasing the cost tremendously."  He continued:

 

      To pay for your stay makes sense to us.  The question comes back, 'Do the inmates have any money?'  One thing I would like to point out...on a monthly basis in the Clark County jail...we operate a commissary system...these inmates purchase $53,000 worth of candy bars and snacks.  On any given week, we have 1,360 inmates who place an average order of candy bars...for $12.41.   Many of these people do have money...even if they are not able to pay the entire $30.00 per day cost, they should be paying something for their stay.  All of those dollars should not come from the taxpayers of Clark County or any other county in the State of Nevada.

 

Senator Adler stated he supported the concept, but asked, "Will this end up reducing the amount of restitution pay or fines they pay to the county?"  He said he could see how this sort of a program could cut down on the amount of money available for restitution to victims.  Deputy Chief Conner answered he had studied the statistics from the State of Michigan, which indicated the prisoners are paying both restitution charges and for their stay in jail.  Senator Adler pointed out the bill did not establish any priority for restitution payment over payment for the cost of incarceration.  He also said the county would "have all the resources necessary to collect the money" while the victim does not.  Deputy Chief Conner indicated he believed that could be addressed in the legislation, possibly in section 4.  Senator Adler stated he believed the first priority should be restitution to victims.    

 

Senator Titus asked if each prisoner was evaluated in order to determine how much they could afford to pay.  Deputy Chief Conner stated there was a provision in S.B. 294 which would require an interview with a prisoner to include questions regarding financial ability to pay.  He said if the prisoner refused to fill out the questionnaire, he would not be eligible for "good time" credits.  Senator Titus asked what would happen if a prisoner had no money and could not afford to pay.  Deputy Chief Conner indicated that prisoner would not pay anything.  He stressed going to jail "was not a free ride," and there were a number of prisoners who preferred to spend time in jail rather than paying a fine. 

 

 

In response to another question posed by Senator Titus, Lieutenant Nadeau stated a "weekend jail" inmate is charged for the time spent in incarceration. 

 

Lieutenant Nadeau stressed the legislation was to provide for payment by the prisoner, and not by any other entity.

 

Senator James reiterated Senator Adler's comments regarding payment of restitution to victims and also stated his concern about funds being available to the families of prisoners.  He said he believed the committee should address "a priority scheme," and Lieutenant Nadeau and Chief Deputy Conner stated they would have no problem with such an amendment to the bill.  Senator Adler agreed and added child support orders and fines should be included in that priority list. 

 

Senator Titus asked who reviews the interview form completed by the prisoners and determines how much each prisoner could pay.  Deputy Chief Conner answered the county would have a staff to do the review and any money generated by the program would be sufficient to pay for the staff.  He also pointed out in order to collect money not paid, a civil judgment would have to be obtained, so a court review would be necessary. 

 

The next person to testify regarding S.B. 294 was Paul McGrath, representing Nevada Sheriff's and Chief's Association.   Mr. McGrath stated the association agreed with the concept of the bill and the suggested amendments.

 

Judy Jacoboni, MADD, stated support for the bill, as amended.  She said the organization feels all DUI offenders should pay for their own incarceration. 

 

There was no further testimony on S.B. 294 and Senator James closed the hearing on the bill, and opened the meeting to testimony on Assembly Bill (A.B.) 68.

 

 

ASSEMBLY BILL 68:Extends time in which action for damages for injury arising from sexual abuse of minor may be commenced.

 

Appearing as sponsor of the bill was Assemblywoman Stephanie Smith.  Ms. Smith stated the bill was part of a series of bills presented by women affected by sexual abuse.  She said the original bill contained many other provisions, but because of its "liberalness" it was defeated and a new bill introduced.  Ms. Smith stated the main problem arising out of the sexual abuse of a minor is the repression of memory of the incident or incidents, which often takes many years to surface.  She indicated when the memories do "come to bear," therapy and counseling can be very lengthy, time consuming and costly.  Ms. Smith continued, "By the time people are emotionally ready to deal with the issue of sexual assault when they were minors, the statute of limitations has lapsed."  She said although the statute provides for a 3-year limitation after the incidents have been recalled, this is not enough time to go through therapy and the healing process necessary to allow a person to address the issues.  Ms. Smith stated:

 

      We are dealing with a situation that is very far reaching and very long lasting.  With a civil liability of 3 years, very few people are able to seek recourse...civil liability gives [these people] a mechanism for which they can possibly draw compensation for all the costs...it is [also] an opportunity to seek closure to an event in their life which has tortured them for all these years...this is the final step in the healing process.

 

Ms. Smith said if the time limit remains at 3 years, "...we will be cutting off a lot of people from seeking this...10 years is very fair." 

 

Senator Titus pointed out the 3-year time limit was established in the last session and asked, "What has happened to make 3 years not enough now?"  Ms. Smith answered, "For most people, 3 years is still not enough...it takes years of therapy...that is not realistic." 

 

The next to appear in support of A.B. 68  was Alicia Smalley, Legislative Chair, National Association of Social Workers (NASW), Nevada Chapter.  Ms. Smalley read from a prepared statement, attached hereto as Exhibit E.  Also speaking to this issue was Marsha Slotten, Executive Director, NASW, Nevada Chapter.  Ms. Slotten stated:

 

      There are numerous conscious and unconscious psychological reactions to the victim because of the secret and private nature of this crime.  A conspiracy of silence often exists in families to maintain the status quo, especially dysfunctional families... A child is aware of the destructive impact of this kind of confrontation and does not want to be responsible for divorces, arrests, separations and other family destruction which results from telling what has happened. 

 

Ms. Slotten recalled her own experiences as an abused minor and said she has never confronted the perpetrator, because she does not have the courage. 

 

Senator James indicated to Ms. Smith he had some questions regarding a 10-year statute of limitations.  He referred to the "discovery rule" in law, which allows additional time to bring an action if the basis for it has not been discovered.  The chairman asked if it might not be better to amend the discovery rule in the bill, since the language, "...or reasonably should have discovered" is a very tough issue to deal with in this area because of memory repression.  Senator James stated he had a problem "...if it is 10 years after you have discovered it...because 'discovered' means you came to grips with it."  Ms. Smith disagreed, saying, "Discovered means you came to cognition...it does not mean you came to grips... those are two separate issues."  She added the process of reaching the level of being able to confront the situation, "...is a very long-term process...3 years sounds like a long time, but we are dealing with a different kind of crime."  Senator James indicated he believed the statute of limitations should be longer than 3 years but questioned whether 10 years was the right length of time. 

 

Senator Titus asked if "discovery" could be defined as when a person "comes to grips" through therapy.  She then asked Ms. Smith if psychiatrists or psychologists had testified on the bill when it was before the assembly committee.  Ms. Smith indicated they had and Senator Titus questioned why they did not appear for the senate committee hearing.  Ms. Smith answered she did not know, since the meeting was posted.

 

Senator James again pursued the issue of discovery and stated:

 

      What does 'discovers' mean?  If someone has really come to grips with it, and they need 10 years to bring it to court...maybe we should look at whether or not we could craft a different discovery rule for this to take into account what level of cognizance and emotional adjustment have to be reached....

 

Ms. Smith stated that "would be even harder to legislate" and asked how a person would know when they had reached that level.  She added she did not foresee the courts being flooded with people rushing out to take advantage of being able to file a civil action, but said she felt "we owe it to those people who need this." 

 

Senator James asked Ms. Smith to provide him with the entire record of proceedings in the assembly committee.  He indicated he would also review the minutes on the legislation in the last session which set the 3-year statute of limitations. 

 

The next to testify on A.B. 68 was Kim Walsh, a private citizen, who spoke regarding her experience as a "survivor of sexual abuse."  Ms. Walsh's written statement is attached hereto as Exhibit F.  Ms. Walsh also indicated 10 years from the time of discovery until damages could be recovered was not an unreasonable amount of time.

 

The last person to testify was Bobbi Gang, representing the Nevada Women's Lobby, who indicated the lobby's support of the legislation.  She referred to the discussion regarding the meaning of "discovery" and indicated there was a problem because the word "has a specific definition in law that does not apply in these cases, because it is not as if you discover the crime all at once."  Ms. Gang reiterated earlier suggestions regarding the rewording of the section.  Senator James asked if Ms. Gang would support leaving a 3-year statute of limitations in effect, if the word "discovery" was given a different meaning in the bill.  Ms. Gang answered, "I also represent the social workers and everybody is looking at 10 years as a fair extension...3 years is inadequate."

 

There was no further testimony on A.B. 68; the chairman closed the hearing and adjourned the meeting at 3:30 p.m.

 

 

                              RESPECTFULLY SUBMITTED:

 

 

 

                                                      

                              Marilyn Hofmann,

                              Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

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Senate Committee on Judiciary

March 22, 1993

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