MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 5, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on April 5, 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
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Robert Schell, Member of the Public
Ben Graham, Lobbyist, Nevada District Attorney's
Association
Andrea L. Engleman, Lobbyist, Nevada Press Association,
Inc.
David F. Sarnowski, Deputy Attorney General, State of Nevada,
Office of the Attorney General
Beverly Saucedo, Extradition Officer, State of Nevada, Office
of the Attorney General
John J. Gezelin, Attorney, Nevada Trial Lawyers Association
Frank A. Barker, Lobbyist, Las Vegas Metropolitan Police
Department
William E. Schaeffer, Deputy District Attorney, Eureka County,
Office of the District Attorney
Deputy Chief Nile Carson, Lobbyist, City of Reno
William Bible, Chairman, State of Nevada, Gaming Control Board
Stephen R. Johnson, President, Appraiser, Johnson-Wright & Associates
Brian R. Hutchins, Chief Deputy Attorney General, State of
Nevada, Office of the Attorney General, Transportation
Division
Robert T. Schell, Senior Right-Of-Way Agent, Clark County,
Department of Public Works
Senator James opened the hearing on Senate Bill (S.B.) 242.
SENATE BILL 242: Makes various changes regarding regulation of gaming. (BDR 41-322)
Senator James advised S.B. 242 had previously been heard, but that William Bible, Chairman, State of Nevada, Gaming Control Board had amendments. Senator James stated the proposed amendments seemed to cover the areas of concern.
Mr. Bible advised it had been pointed out to him in the previous hearing that no fee had been established for an operator of a paramutual system. He stated that sections 5 and 6 of S.B. 242 accommodate such a fee. Mr. Bible referred to his letter of March 23, 1993, in which he had suggested further amending S.B. 242. The amendment would provide in chapter 464, Nevada Revised Statutes (NRS), for the establishment of a $500 fee for either the applicant for a new license, or the issuance of a renewal of a license for the operator of a paramutual system. He stated this fee would be consistent with other fees in the statutes, and gave examples.
Senator James advised this amendment was a result of a consensus of the interim study, chaired by Senator Titus.
Mr. Bible stated the board had suggested a fee be established, as the paramutual system license was a relatively new classification. He advised when the request for the bill was submitted to the bill drafter, this was inadvertently omitted, and therefore, the amendment was requested. Mr. Bible stated he had submitted the other requested amendments to Senator James.
Senator James advised he had received the proposed amendments and distributed them to other members of the Senate Committee on Judiciary. He confirmed there were no questions from committee members regarding the amendments. He stated he had received a letter from Mark Lerner, Attorney, with the law firm of Jones, Jones, Close and Brown. Mr. Lerner stated concern regarding prohibition of admission charges in certain establishments where gaming occurs, and did not think S.B. 242 implemented this. Mr. Lerner also had concern regarding NRS chapter 463.408(2)(b), dealing with special events permits.
Mr. Bible replied special events permits were not suggested by the board, but rather by people testifying for Metro Goldwyn Mayer (MGM) before the interim committee. He advised these people indicated they wanted additional flexibility, and their proposals are contained in S.B. 242. He believed the provision would remove a time limitation on the frequency of special events which could be approved.
Senator James stated a suggestion was made in the last hearing to entirely remove section 8 of the bill.
Mr. Bible recalled that the opponent of section 8 felt this section had the power to provide or convey a taxing authority. Mr. Bible did not read it this way, but had no problem in removing the section.
Senator James confirmed there were no questions or comments from the committee. He stated the removal of section 8 of S.B. 242 would be included in the amendments.
SENATOR SHAFFER MOVED TO AMEND AND DO PASS S.B. 242.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James opened the hearing on Senate Bill (S.B.) 170.
SENATE BILL 170: Limits physical evidence that becomes public record as result of consideration by grand jury. (BDR 14-588)
Senator James advised S.B. 170 was heard previously in committee, and briefly described the bill.
Ben Graham, Lobbyist, Nevada District Attorney's Association, provided oral testimony. Mr. Graham advised a memorandum had been received from Donald K. Coppa, Assistant District Attorney, Washoe County District Attorney's Office. Mr. Graham distributed this memorandum to the committee, as Mr. Coppa could not attend this hearing. A copy of the memorandum is attached as Exhibit C. Mr. Graham advised Mr. Coppa's memorandum contained proposed amendments to S.B. 170. He advised the amendments would give grand jury evidence the same credibility and availability as other testimony. He asked the committee to recall that the original bill provided for an availability to the evidence presented before the secret grand jury, which is not available to any other evidence in the criminal proceeding. The bill proposed to give that evidence the same status as evidence presented in other criminal proceedings.
Senator James advised he had the same concerns as before. A procedure is available with which to sequester items with a motion, and physical evidence has been eliminated. He stated the bill was more palatable to him before the proposed amendment, as there was still a procedure by which an item would become a matter of public record if introduced into evidence at the trial. He stated the bill, if amended as requested, does not speak to this question.
Mr. Graham referred to item 5 on Mr. Coppa's memorandum. He agreed with Mr. Coppa's statement that obtaining a court order was cumbersome, and would do more harm to accessibility than good.
Senator Adler expressed mixed feelings about the bill. He believed the public should have access, but did not see how an evidence officer could keep a chain of custody together on physical evidence if open to inspection by the public. He also saw a problem with an evidence officer testifying at trial that evidence had not been tampered with, after the evidence had been reviewed by a great number of people. He believed the press association was concerned with video tapes or other things which could be readily duplicated without contamination.
Mr. Graham replied the video was apparently what brought rise to this issue.
Senator Adler reaffirmed his belief that all physical evidence being within the purview of the public was going to be a problem.
Senator Jacobsen stated he shared Senator Adler's concern. He was concerned whether something presented for evidence would be in the record. If that item was later called up as evidence at trial, he would want assurance that it was not contaminated.
Mr. Graham asked, in light of the concerns addressed, if a sub-committee could be formed. This would allow Mr. Coppa to address these concerns.
Senator James confirmed the committee understood the proposal suggested, to address Senator Jacobsen's concern. He advised under current law, when the transcript of the grand jury proceeding is filed, the physical evidence exhibited to the grand jury becomes a matter of public record unless the court orders that it remain secret. It remains secret until further order of the court. Therefore, Senator James could not imagine how the chain of custody could be disturbed. He stated the testimony presented to the committee by the press association was to address obtaining a video tape which was in evidence. He was not sure what interest the press would have in viewing other evidence, such as a bag of cocaine. He advised chain of custody items are those which can lose their integrity if not kept in a specific chain of custody. The evidence custodian must be able to testify that the evidence was not adulterated. He stated S.B. 170 does not seek to address those types of items. He advised "all physical evidence" is currently dealt with in the law. S.B. 170 seeks to change the law to say physical evidence is not addressed, and this evidence is only addressed administratively through the court system, with access only with permission of the courts. He advised S.B. 170 contains a provision eliminating limited access to items shown to the grand jury, which form the basis of an indictment.
Senator Adler believed the press had a good point in saying photographs and other things which could not be tampered with should be available. He stated, however, all of the amendments presented have dealt with all physical evidence. He advised anyone can obtain access to a public record. He explained the procedure by which evidence is viewed, and stated it is very difficult for the evidence officer if many people view the evidence. He could see where someone could duplicate a videotape, but did not believe it would be appropriate for even the press to duplicate it themselves. Altered video tape would be grounds for suppression of evidence at trial.
Mr. Graham again stated the videotape was apparently what prompted the bill, and an analysis of the statute opened the question to all physical evidence.
Senator Jacobsen asked if evidence is classified by type, such as hard, soft, liquid, color, and so on.
Mr. Graham replied basically all evidence goes into a locked vault, with narcotics being more secure than other things.
Senator Jacobsen related a case wherein evidence had been secured, and proven at trial to be something other than represented.
Mr. Graham stated this appeared to be a case where the evidence was either tampered with, or was not what was represented in the first place.
Andrea L. Engleman, Lobbyist, Nevada Press Association, Inc., provided oral testimony. She requested and was given a copy of the proposed amendments to S.B. 170. Ms. Engleman asked for and received time to send this information by facsimile to the association's attorney.
Senator James again advised the current procedure in the statutes, which deals with evidence on an ad hoc basis, and that S.B. 170 would change this procedure.
Ms. Engleman stated the changes proposed were the basis for her association's opposition to the bill, and she did not feel the amendments improved the procedure over the present practice.
Senator James stated he would again hold S.B. 170 to allow Mr. Coppa to be present at the hearing and provide insight into the proposed amendments. Senator James closed the hearing on S.B. 170.
The hearing was opened on Assembly Bill (A.B.) 80.
ASSEMBLY BILL 80: Revises definition of value as it relates to eminent domain. (BDR 3-455)
Senator James briefly described the bill, and advised that, especially in Clark County, some huge projects were going to require that condemnation power be used extensively. He advised the provisions of A.B. 80 could have a profound effect on how those cases would progress.
Mr. Graham provided oral testimony in support of A.B. 80. He explained the law of eminent domain. He advised A.B. 80 requests codification of other law for the purpose of placing stability in the law of eminent domain in dealing with evaluation. Mr. Graham stated A.B. 80 was necessary to ensure landowners are given the fair market value of their property. This would not take into account public works, where if the property is diminished or increased, the owner still gets what the property is worth. He believed if adopted, the proposals in A.B. 80 would decrease amounts paid in condemnation cases, and therefore save taxpayer dollars.
Brian R. Hutchins, Chief Deputy Attorney General, State of Nevada, Office of the Attorney General, Transportation Division, provided oral testimony in support of A.B. 80. He advised the bill is sponsored primarily by Clark County, and supported by the Nevada Department of Transportation and the Office of the Attorney General. He stated section 1 essentially codifies existing law, which is noted in the amendment on page 2, section 4 of the bill. He read this section, and advised the proponents of the bill felt it was of sufficient importance to make it part of the statutes. He made reference to section 2, lines 13 through 15, defining "date of valuation." He stated this is only moving the current definition from page 2, lines 13 through 16 to page 1. He advised lines 21 and 22 redefine the term "value," as to what a property owner will get when his property is condemned. He advised the constitution requires payment of just compensation, which the United States Supreme Court (U.S. Supreme Court) has defined as market value. He stated the proponents of the bill had tried to reach a common understanding of what is market value. The proponents of A.B. 80 have stated market value will be as defined in the Code of Federal Regulations (CFR). (A copy of 12 CFR Ch. 1 is attached as Exhibit D.) Mr. Hutchins advised this CFR citation is found on line 22 of the bill. He stated in 1989 the Nevada Supreme Court, in the case of Wheeler v. Department of Transportation, 105 Nev. 217 (1989) ("Wheeler"), said market value should be defined as the highest price that the property could bring on the open market. A.B. 80 recites the same definition. He stated it is hoped that jurors are better able to understand they need to find the most probable price and not find the highest price. Mr. Hutchins introduced Mr. Stephen Johnson, and enumerated Mr. Johnson's qualifications as an appraiser.
Stephen R. Johnson, President, Appraiser, Johnson-Wright & Associates provided oral testimony. He stated, regarding the definition change in A.B. 80, that he served on a committee of the National Appraisal Institute (NAI) in the 1970s which studied the definition of value. He advised the industry had, for a long time, used the phrase "highest price," and the appraisal profession became convinced that was not the proper definition. In the 1970s the NAI changed to "most probable price" and has used the term since. He advised the term is in the NAI Handbook.
Senator James asked for and received a copy of the NAI Handbook to review.
Mr. Johnson stated the proposed definition of market value originated with the banking crisis. All of the federal agencies which regulate the financial institutions were required to adopt appraisal regulations, and as part of this, adopted the definition of market value. He advised that all appraisers, as well as lending institutions, now use this definition. He believed this is an appropriate change.
Senator Shaffer asked what definition is used in day-to-day appraisal activity.
Mr. Johnson replied the definition proposed in A.B. 80 is used, except when testifying in Nevada condemnation cases. On those occasions, the appraisers must use the definition established in Wheeler, which is highest price. He believed this tends to confuse the appraiser, the jury, and everyone involved. He believed the proposed definition is very clear. The intent is to attempt to arrive at a fair value for the property.
Senator Smith related an incident he had been involved with regarding the Henderson Water District, and the result of the condemnation proceedings. He advised that, upon review of the statutes, he found 15 separate chapters all dealing with condemnation. He believed A.B. 80 was a "band-aid" measure, proposed without looking at the entire subject. He asked Senator James to hold the bill for further consideration.
Senator James advised he had read the Wheeler case. He stated when he looks at "most probable price" and "highest price" it seemed to be the same thing. He recognized Mr. Johnson's job was to determine what the market would bring between a willing buyer and seller, with all relevant factors being considered. He believed this would be the most probable price, and the highest price. He related portions of the Wheeler case dealing with this issue. He wondered why the statute needed to be amended, if the courts have already said "most probable price" and "highest price" were equivalent.
Mr. Johnson stated the two terms were nearly similar. However, he stated the court also quoted their definition which was taken from a California case in 1909. He advised the U.S. Supreme Court has addressed the issue on some occasions, as has the Real Estate Appraisal Institute (RAI) and the federal government. He stated the intent was not to change from "highest price" to "most probable price." He further advised that the definition in CFR includes many things a jury or fact finder is supposed to look at in making a determination of market value. He stated the definition in Wheeler is deficient, not only in saying "highest price" but in omitting some of the things found in CFR. He believes the CFR definition goes a long way in improving the fact finding process.
Mr. Johnson stated he would like to see a further study of the entire eminent domain field regarding how to arrive at an agreeable market value and determination of what is fair. He hesitated, however, to hold A.B. 80 to accomplish this, as the process would be involved and time consuming. He related many attempts on his part to gather information in this regard. He believes A.B. 80 is more than a "band-aid" measure, and is a significant step toward assisting everyone in this regard.
Mr. Hutchins concurred there is confusion regarding A.B. 80 appearing to be a minor change. He related his experience regarding past efforts to clarify value determination, and various problems relating thereto. He feels A.B. 80 will bring everyone back to the same focus.
Senator James asked if the definition of fair market value in CFR impacted federal condemnation cases.
Mr. Johnson replied the definition quoted in CFR came from the office of the controller of currency. He advised it is used for financing through all federally regulated banks. He further advised that the definition is used in federal condemnation cases, the U.S. Supreme Court and, to his knowledge, all federal courts.
Senator James asked if a developed case law standard was used. He was concerned that the legislature, by adopting this language, would be unduly restricting the courts.
Mr. Johnson reiterated the CFR originated following the savings and loan crisis. He advised it has not been definitively addressed by federal courts, but is largely used in federal courts. He believed it is simply refined in the regulation area to put it into the present format.
Senator James advised he wished to be very careful about the legislatively adopted standard, in an area where case law has developed hundreds of years of jurisprudence in assessing fair market value in these cases. He was concerned with Mr. Johnson's testimony of an untested standard, developed for the savings and loan scandal, which has not been through the court system. He asked Mr. Johnson and Mr. Hutchins to give the committee assurance that the standard had been adopted from the court system, as stated. He stated that page 20 of the NAI Handbook refers to the standard, but not in the same wording in the CFR definition. He said the book then goes on to list the factors which can be dealt with, taken from the Federal Institutions Reform, Recovery, and Enforcement Act (FIRREA). He asked if it was not FIRREA to which Mr. Johnson was referring.
Mr. Johnson replied the RAI standards were adopted in the 1970s, and as the banking problems arose, the definitions came from the appraisers' textbook.
Senator James referred to the NAI Handbook, which states:
. . .the willing buyer and the willing seller on a competitive market all conditions requisite to a fair sale and the buyer and seller are equally motivated and acting prudently and in their own self-interest.
He then referred to the bill, which has essentially the same language, with the exception that, in the bill "undue duress" is changed to "undue stimulus." He advised it then goes on to say "under conditions whereby" and incorporates factors such as reasonable time allowed, no creative financing, or concessions granted by anyone associated with the sale. He stated both standards had been combined together. He asked if a jury would be instructed in every case on all factors such as creative financing.
Mr. Johnson stated the real estate appraisers feel the definition clearly lays out what they should be addressing as part of the appraisal. He advised the first draft of A.B. 80 did not have the additional qualifications, which he encouraged. He advised these qualifications are in conformance with the CFRs and that each of the federal agencies regulating the appraisal industry have adopted this language.
He stated it would be prudent to instruct a jury not to consider creative financing unless a governmental agency was going to buy on a creative financing basis. He had never seen this happen, as typically the purchase would be cash.
Mr. Johnson believed in a condemnation proceeding, for example, the property is selling on a cash basis and therefore the cash value should be addressed. He stated abuses had been found in the appraisal industry in the 1970s and 1980s regarding misinterpretation of creative financing. An appraiser would take the value on this basis and apply it to a cash situation, which was totally different. He advised this is why the term is included in the bill.
Senator James stated many things in A.B. 80 oppose original definitions. He asked if the type of consideration was being changed. He referred to the handbook which states "payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto." He further stated the old law said "generally the property taken in condemnation proceedings is market value in terms of money which the land would bring if exposed to sale in the open market." He advised this is stated in Wheeler, quoting from the case of City of Elko v. Zillich, 100 Nev. 366 (1984) ("Zillich"), upon which everything in Nevada is based. He asked if this does not appear to be a substantial change.
Mr. Johnson believed this was a clarification rather than a change. He stated typically in condemnation situations, the property owner is paid in cash by the acquiring agency, and therefore it has always been implied that it is a cash transaction. He believed, strictly from an appraiser's standpoint, this is what should be stated in Nevada law.
Senator James voiced concern regarding the transaction as it would occur when the person is compensated for their property being taken. He added, the definition of "market value" is meant to determine the price which would be paid, without regard to the condemnation. He stated the first part of A.B. 80 deals with this. He agreed with section 1 which states the value is determined as if there never was a public improvement project or a condemnation of the land. However, if a public entity was not coming in, the owner may be able to sell the property in a non-cash transaction. He asked, therefore, if consideration should not be given to whatever the market might bear.
Mr. Johnson disagreed, saying he believed there are too many abuses which can arise. He believed the cash basis should be used. If the property was sold on a non-cash basis, it would bring more, but the cash price is the fair price.
Senator James asked if consideration is ever given to what the property would bring if sold in other than strictly cash transactions.
Mr. Johnson replied it was not, and the definition proposed brings everyone back to a common denominator. He relayed situations which had promoted the confusion, and the need for this definition.
Mr. Hutchins also believed the main theme desired was the common denominator. He stated this is why cash terms are used, and even where creative financing is present, it must be translated into cash. He again related problems and confusion relating from the use of other definitions of value.
Senator James stated concern in, for example, using the comparable sales analysis, with a creative financing situation on the subject property. He asked if this would allow the state to argue that should be excluded as not being a comparable sale, or would the appraiser state he discounted the sales price based upon his analysis of what the cash price would have been.
Mr. Johnson replied there is no intent to exclude the sale from testimony. He advised the appraiser can consider the sale, but also needs to consider the financing involved in that transaction, which may have impacted the price paid. He stated all of this is working to attempt to arrive at a fair value for the property, regardless of the type of sale.
Mr. Hutchins stated, for the record, that the definition proposed has been found in the book The Appraisal of Real Estate, 9th Edition, and many editions prior. The definition is also in The Uniform Standards of the Professional Appraiser Practice, and is commonly used across the country.
Senator Shaffer suggested the seller, under a condemnation procedure is, in many cases, not motivated to sell, and in fact may be hostile.
Mr. Johnson stated A.B. 80 states, in order to arrive at the market value many assumptions have to be made. These assumptions include that hypothetical question of what the property would bring if the seller was typically motivated.
Senator James asked what percentage of eminent domain cases are not settled and go to trial.
Mr. Hutchins believed it is 10 percent or less. Mr. Johnson confirmed this figure.
Senator James asked if Mr. Hutchins had the perception that applying this definition would result in the state paying less money, or simply that the case would be cleaner. He believed if the terms used by appraisers are the standard of the law, the taxpayers would not benefit, except in terms of a possible decrease in litigation.
Mr. Hutchins believed this definition would make the cases a lot cleaner and hopefully easier for juries to understand on what their determination is to be based. He also believed because of confusion and difficulty juries have, they are looking at a higher figure on many occasions. He stated the revision does, therefore, have the potential for some savings to public agencies.
Senator James asked if there was less disagreement over the definition, would more cases be settled.
Mr. Hutchins replied it was hard to say, as thought processes of jurors are difficult to predict. He added it was difficult to say what effect this would have on property owners being willing to settle.
Senator James stated concern over thinking that the result of A.B. 80 would be a win to the state or to the taxpayers. He believed the ultimate goal should be to pay the property owner "just compensation."
Mr. Hutchins agreed that the bottom line is to make this a fair process.
Senator James asked Mr. Hutchins and Mr. Johnson to report back to the Senate Committee on Judiciary on the question of dispensing with the long-used case law definition of value. He reiterated the reasons leading to this being a considered decision. He stated that a major departure in an area of the law must be justified. He wanted to be certain that this new definition, developed for the savings and loan crisis, can be explained, and justification for imposing this on the courts can be made.
Mr. Graham referred to a statement received from Robert Schell, Director, Public Works Department, Clark County. This statement is attached as Exhibit E. Mr. Graham advised the statement addresses some issues raised in this hearing.
John J. Gezelin, Attorney, Nevada Trial Lawyers Association, provided oral testimony regarding A.B. 80. He stated that he concurred with comments made in previous testimony regarding amendments in sections 1 and 2. He advised, regarding section 5, the definition of value, the Nevada Supreme Court has given a standard in Wheeler. He advised the court feels just compensation, and not a bank appraisal, is the standard which should be applied in condemnation matters. He believed before making a substantial policy change the Senate Committee on Judiciary should be aware there would be such a change taking place.
Senator James asked Mr. Gezelin's opinion regarding the effect on instruction and deliberation of juries if this change is made.
Mr. Gezelin replied he thought lower values would be a result, and that more cases would settle. He believed the change would discourage people from pursuing avenues through litigation.
Senator Adler reviewed the statute on the definition of value, and asked if the 12 CFR section should not have a date that the committee is referencing it.
Mr. Gezelin agreed that if the CFR standard is adopted, these should be some reference to what it says.
Senator James advised he had handled a few condemnation cases, and did not believe any conflict arises as a result. However, he stated he would be certain there is no problem before a vote is taken.
Senator Shaffer advised he owns an appraisal firm, and will
therefore abstain from the vote on A.B. 80.
Senator James confirmed there was no further testimony on A.B. 80, and closed the hearing.
Senator James opened the hearing on Assembly Bill (A.B.) 227.
ASSEMBLY BILL 227: Authorizes return of person to another state without extradition proceeding if person executed waiver of extradition in state requesting his return. (BDR 14-592)
Mr. Graham presented oral testimony in support of A.B. 227. He explained that if a person has been convicted on an offense in another state and is released on parole or probation, they are required to comply with certain conditions. He advised one condition was the signing of a statement that if they flee the jurisdiction without permission to leave, and/or do not report as required, they waive extradition when they are found. He advised about six states have legislation similar to A.B. 227, and approximately 20 states which have case law supporting the terms in A.B. 227. He advised Nevada has neither case law nor statutory authority for the legal system to automatically send a person, who has signed a waiver of extradition, back to another state. He stated A.B. 227 asks for statutory authority to honor pre-signed waivers of extradition from other states.
Mr. Graham advised there is one amendment, reading as follows:
On page 1, line 22, insert a comma after ". . .shall deliver immediately deliver that person. . .", and insert "after resolution of all Nevada charges" . . .
Mr. Graham advised with this amendment, local charges could be disposed of before a person was sent back to the other state. He believed Arizona would, in the near future, amend a similar statute.
Beverly Saucedo, Extradition Officer, State of Nevada, Attorney General's Office, provided oral testimony in support of A.B. 227. She advised the amendment mentioned by Mr. Graham is very important. She stated Arizona's reason for amending their statute was problems in the past of losing offenders to another state before local charges were resolved. This forces Arizona to extradite the person back.
Senator James confirmed there was no further testimony on A.B. 227, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 348.
ASSEMBLY BILL 348: Provides for continuing treatment of juvenile offender certified as adult. (BDR 5-584)
Mr. Graham provided oral testimony. He referred to the case of Robert E., A Minor v. Justice Court of Reno Township, 99 Nev. 443 (1983) ("Robert E."), a copy of which is attached as Exhibit E. Mr. Graham stated on page 1 of the petition in Robert E., the establishment of legislative intent is requested. He advised the petition states that NRS 62.080 is ambiguous. Mr. Graham advised the purpose of A.B. 348 is to set a statutory standard for the continued certification of minors. He explained the problem arises from 16 and 17 year-olds who have histories in juvenile court, and then commit an act which would be a felony if the person was an adult. If, after review and evaluation, it is determined the juvenile court has nothing more to offer the offender, he or she would be certified up to be tried as an adult. He stated frequently, when the person is awaiting trial, he or she commits another felony. Under the current law, that person starts over again in juvenile court. He outlined the procedure necessary in this case. He stated A.B. 348 asks that, if a person commits what would amount to a felony if the person was an adult, and the person has been certified as an adult, the certification remains, and applies to further felonies committed. He advised if circumstances warranted, the person could still be remanded back to juvenile court.
Mr. Graham added that, if A.B. 348 passes, misdemeanors and gross misdemeanors would also be treated as adult offenses. He advised that currently, even though a person is being held on adult charges, misdemeanors and gross misdemeanors committed by that person are theoretically still dealt with in juvenile court.
Senator James asked Mr. Graham to advise what occurred in Robert E..
Mr. Graham advised the minor was certified up on a burglary charge. The minor was released and committed another burglary a couple of months later. He advised the court did not have another certification hearing, but held that once Robert E. was certified up he was certified as an adult. The Nevada Supreme Court ruled the statute was ambiguous, and another certification hearing was necessary. The hearing was held, and Robert E. was re-certified. Mr. Graham stated A.B. 348 would eliminate a basically useless hearing process. He advised this is a prevalent problem, even more so in Washoe County than in Clark County.
Senator James asked if A.B. 348 would apply if a person was certified as an adult and not convicted of the crime. He referred to the bill's language:
After such a child has been certified in proper criminal proceedings and his case has been transferred out of the juvenile division, original jurisdiction of his person for that case and any offense with which he is later charged rests with the court to which he has been certified and he may thereafter petition for transfer back to the juvenile division only upon a showing of exceptional circumstances.
He further referred to the language which will be added is " . . .for any offense with which he is later charged."
Mr. Graham advised once a person was certified he or she would remain certified. If the person was acquitted and charged with another felony, a defense attorney would move to certify he or she back down to juvenile court. He stated the argument the person had been convicted or is charged with another felony would not be present.
Senator James asked if the person would not still have to show exceptional circumstances.
Mr. Graham agreed, but added that prior to the person being certified, the court would have examined the alleged offense and the person's history and background, to determine that the juvenile court could not help the person.
Senator James asked if consideration would be given to the reason the person was certified in the first place. For example, if someone committed a heinous crime, and was certified as an adult, but was acquitted. He asked if that person should not regain his status as a juvenile and not be required to have the heightened standard of exceptional circumstances to be treated as a juvenile.
Mr. Graham assumed the court would have to look at the seriousness of the offense. He believed that although the presumption of innocence was present, in 99.9 percent of the cases there would be a guilty finding. If this was not the case, the option of being treated as a juvenile is still available.
Senator James asked if there was a way to amend A.B. 348 to prevent this from happening.
Mr. Graham stated an amendment could state if the person is found not guilty the certification process ceases for all later crimes charged, and the person is subject to re-certification. He did not believe this would interfere with the intent of A.B. 348.
Deputy Chief Nile Carson, Lobbyist, City of Reno, provided oral testimony. He advised the City of Reno supports A.B. 348 as written. He stated an increase in juvenile crime has been seen in his area, with juvenile offenders being back on the street and involved in serious and violent crime, before the offenders can be certified. He stated if the offenders are certified and released on their own recognizance, they are again seen on the street. He said this is viewed, not only by members of the general public, but other potential juvenile offenders, as a failure of the system, which exacerbates the problem. He expressed the wish that a similar measure could be made to apply to those crimes which can certify a minor under the age of 16.
Senator James confirmed there was no further testimony on A.B. 348, and closed the hearing.
Senator James advised bills S.B. 70, S.B. 242 and A.B. 80 would be heard at a work session. He reopened the hearing on A.B. 227.
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 227.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James reopened the hearing on A.B. 348.
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 348.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James confirmed there was no further business to come before the committee, and adjourned the meeting at 4:10 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
April 5, 1993
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