MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 21, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:10 p.m., on Wednesday, April 21, 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
Marilyn Hofmann, Committee Secretary
Maddie Fischer, Primary Secretary
OTHERS PRESENT:
Frank Daykin, Member, Uniform Law Commissioners
Dale Erquiaga, Deputy Secretary of State, State of Nevada, Office of the Secretary of State
Ben Graham, Nevada District Attorney's Association
Senator James announced the hearing would cover three uniform acts which have been passed by the assembly, Assembly Bill (A.B.) 345, Assembly Bill (A.B.) 350, and Assembly Bill (A.B.) 362. Mr. Frank Daykin, a Uniform Law Commissioner, explained all three measures.
ASSEMBLY BILL 345: Adopts Uniform Foreign-Money Claims Act.
A brochure entitled Uniform Foreign-Money Claims Act (UFMCA), as drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), which was approved and recommended for enactment in all states at the annual conference of the NCCUSL in 1989, is attached hereto as Exhibit C. An overview of the act which was provided to the committee members is attached as Exhibit D.
* Committee member only present for a portion of the meeting. This is noted in the body of the minutes.
Frank Daykin, Member, Uniform Law Commissioners, stated the act was designed to provide a uniform method among the courts of the states for entering judgment in certain preliminary proceedings, when an action involves a claim which is supposed to be paid in a foreign money. Mr. Daykin referred to section 11 of the bill under definitions and said "...perhaps is meant to see how many who read it are awake." He said the section defines "money" as "a medium of exchange for the payment of obligations, or a store of value...." Mr. Daykin stated the latter phrase, "or a store of value" is "merely wishful thinking." He added when the country had a gold standard, money was a "store of value."
Mr. Daykin said the act provides, "...when the obligation in whatever the foreign money may be is going to be converted into dollars, the number of dollars will be determined by the 'spot rate' on the date before payment is supposed to be made." He said there are expedient ways of converting the money, as set forth in section 25 of A.B. 345.
Senator James asked how many states have adopted the UFMCA. Mr. Daykin answered he did not know because of the many legislative sessions now being held across the country, but he would report back to the committee with that information. Senator James asked if A.B. 345 departed from the uniform act in any respect and Mr. Daykin answered it did not, and continued it did not provide for options to select different alternatives. Senator James expressed a concern if the act had been deemed inappropriate in any international litigation. Mr. Daykin indicated he would research that question and report to the chairman. Senator James stated he was certain the act had been developed "...in a manner that will facilitate the parties agreeing on a currency for judgments in all situations, but if there is such case law or a decision, I would like to be made aware of that." Mr. Daykin stated there were "rules of choice" contained in the act. He referred to "the money of the contract or...the money in which usage of the trade dictates settling a particular transaction at a particular place....," and he added it could be a disputed question of fact in some instances, but indicated it had not been brought up by any member of the commission. Senator James stated:
The way I understand it...the parties agree in one of three scenarios...these parties have dealt in this currency, the contract was made in the currency or there is usage of the trade. The parties can agree on any of those things...but if they don't agree, then there is a procedure for the court to [enter an] order.
Mr. Daykin agreed with Senator James' interpretation.
There were no further questions by the committee regarding A.B. 345, and the chairman opened the hearing on A.B. 350.
ASSEMBLY BILL 350: Conforms Uniform Federal Lien Registration Act further to latest revision by Uniform Law Commissioners.
Information regarding the Uniform Federal Lien Registration Act was provided to the committee and is contained on Exhibit E hereto.
Frank Daykin, Member, Uniform Law Commissioners, stated Nevada adopted the first Uniform Federal Lien Registration Act in 1967 and adopted the 1983 revision in 1983, with some omissions and variances. He said A.B. 350 makes further additions to the law. He referred to page 1, lines 16-19 of the bill, which provides specifically for liens involving trusts and estates to be recorded in the Office of the Secretary of State. Mr. Daykin said without that provision, the liens would be filed with the county recorder, which is less appropriate. He indicated the other substantive language appears on page 2, lines 28 and 29 of the first reprint of the bill, and is a clarification rather than a change. Mr. Daykin continued:
As introduced in the assembly, the bill would fully have conformed to Nevada law; however, the county recorders complained some provisions would have required them to change their methods of indexing. The assembly removed those provisions from the act and all that remains is on page 2, line 31 of the first reprint. ...
The present law says the filing officer shall issue a certificate showing whether there is on file any active notice of lien or certificate...the conference version was without the word 'active'...the recorders felt they should have to keep the liens which were no longer active...therefore 'active' was left in, but because the act would be in that respect nonuniform, the language, 'the certificate must state it reveals active liens only' was inserted...so a lawyer from another state who had another provision would be on notice this was only active liens.
Mr. Daykin added, "I don't know why one would want to be sure about inactive liens, unless it were not being sure the filing officer was correct in his diagnosis."
There was no further testimony on A.B. 350 and the hearing was closed on the bill and opened on A.B. 362.
Senator Titus and Senator Shaffer entered the room at 2:30 p.m.
ASSEMBLY BILL 362: Adopts Uniform Law on Notarial Acts.
Information regarding the Uniform Law on Notarial Acts is attached as Exhibit F.
Senator James stated a bill draft has been requested by the committee which would allow many things which now have to be set forth by affidavit to be set forth under "declaration under penalty of perjury." Frank Daykin, Member, Uniform Law Commissioner, stated such legislation would not in any way conflict with the uniform law, but would "simply narrow the scope of what this would have to cover." He added there are many conveyances which do have to be acknowledged. Mr. Daykin indicated the bill draft request by the committee would "be a desirable act," because there are a lot of people who find it difficult to have formal affidavits executed.
Mr. Daykin said the uniform act consolidates and modifies the former uniform act on foreign acknowledgements. He said there is a list of repealed sections of the Nevada Revised Statutes (NRS) at the end of the bill. Mr. Daykin stated the new legislation "...sets down in a single place the criteria for acknowledgement in this state, acknowledgement in another state...and acknowledgement in a foreign jurisdiction." He said he was careful when preparing the bill not to define the word "officer" which the uniform act does, but rather use the phrase "...a notary public or an officer authorized to perform notarial acts." Mr. Daykin indicated a federal court informed the State of Nevada several years ago that a "resident alien" must be granted a commission as a notary public, if he or she is otherwise qualified. Therefore, he said, the word "officer" was removed everywhere it was applied to a notary public, since under the Nevada constitution an "officer" can only be a qualified elector. Mr. Daykin said the result was the careful removal of the word "officer" everyplace it was applied to a notary public.
Mr. Daykin reviewed other provisions of the legislation and said they did not differ significantly from what exists in the present law. He stated there was a provision stating, "A notarial act has the same effect under the law of this state...if it is performed within one of the other jurisdictions." Mr. Daykin referred to the series of short forms set out in A.B. 362, which supersede earlier forms, but do not invalidate those forms.
Mr. Daykin referred to section 19 of the bill, amending NRS 240.071,
which deals with language the legislature inserted in 1989 from the Uniform Notarial Act. He said the only change was the term "notary public" to "notarial officer." Mr. Daykin said the other amendatory sections pick up in the law of property the new references to the forms which would be used in Chapter 111 of NRS and Chapter 278 of NRS.
The next person to speak regarding A.B. 362 was Dale Erquiaga, Deputy Secretary of State for Elections, State of Nevada, Office of the Secretary of State. Mr. Erquiaga, on behalf of Secretary of State Cheryl Lau, expressed support for both A.B. 350 and A.B. 362.
The chairman thanked Mr. Daykin for his presentation of the three pieces of legislation developed through the NCCUSL, and opened the hearing to a work session.
ASSEMBLY BILL 87:Increases fees for filing or providing certain commercial documents and provides for searches of certain records for name of secured party.
Senator James referred to a question following the hearing on the bill regarding a change in wording on line 3, relating to what constitutes the filing of a financing statement under the Uniform Commercial Code. The chairman asked Mr. Frank Daykin, Member, Uniform Law Commission, to speak concerning the change of the word "and" to "or." Mr. Daykin stated he would prefer to retain the word "or" and the removal of the word, "and." He said the presence of the word "or" brought up two possibilities, as is always true with the use of the word. First, Mr. Daykin said, the financing statement must be presented; then the person presenting the statement might tender the filing fee, and for some reason the financing statement might not be accepted. Mr. Daykin said the person filing the statement "had done what a reasonable person would suppose was sufficient...therefore he should be protected." He stated there could be a case where tender of a filing fee was made but the statement not accepted, because some offices might use a "credit arrangement" for payment of filing fees. Mr. Daykin indicated the word "or" would cover both situations set forth above.
Senator James accepted the explanation and indicated the word "and" would be changed back to "or."
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 87.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE).
* * * * *
ASSEMBLY BILL 199: Creates crimes of stalking and aggravated stalking.
Senator James referred to amendments which had been proposed. He said the Nevada District Attorney's Association has asked to amend the bill to make aggravated stalking a felony on the first offense. Senator Titus asked what penalty would be involved if a person were convicted of a gross misdemeanor and Senator James indicated 6 months to 1 year, with a fine of up to $2,000.00. Senator James stated in the hearing on the bill, he had pointed out "harassment" was a misdemeanor on the first offense. He added there could be a situation where the crime of harassment would become the crime of stalking, if "a course of conduct which terrorizes the person" was done. Senator James indicated there would be a substantial change in the bill if the crime became a felony. Senator Titus stated she would not support the change from gross misdemeanor to felony. Senator James indicated the argument for the change was, "You have behavior which is so distressing...unless we make it something more than misdemeanor status, not much is going to be done...." He said he believed the district attorneys were asking "...to make this something which carries more weight in the criminal justice system, so when this kind of behavior occurs, they can pursue it more aggressively." Senator James indicated his view was they should err on the side of not overstating the penalty for the crime, since they were creating a new crime. He said he believed a subsequent offense could be raised to the level of a felony.
Senator James asked Ben Graham, Nevada District Attorney's Association, if more than one offense could be charged in order to raise the charge to the level of a felony. Mr. Graham answered there would have to be a conviction before the second charge could be elevated to a felony. He said if a person were charged with aggravated stalking and it was a gross misdemeanor, it would probably never go to a jury trial. He added, "You just don't take gross misdemeanors to a jury trial...if you can charge an aggravated stalker as a felon, the gross misdemeanor would be a 'plea bargained down' situation." Mr. Graham said if the charge was a gross misdemeanor in the beginning, it could be reduced to a misdemeanor, with no probation. He stated they were asking that the charge be a felony, in order that in plea bargaining, it could be reduced to a gross misdemeanor. Mr. Graham said, "If you are going to get the attention of the police...of these defendants...you need to have the consequence of a felony in an appropriate case." He added if it were not an appropriate case, the charge could be plea bargained to a gross misdemeanor, subject to probation. Senator James asked if the penalty phase was the reason the harassment law has not been more effective. Mr. Graham answered that was one reason, although another was because harassment so often happens between two people, with no witnesses. He said he believed "...you will see stalking on the way to committing the harassment...they will show up at your place of work, which really is not harassment."
Mr. Graham stated, "When there are 14,000 felonies to prosecute in Clark County...a misdemeanor unfortunately takes a much lesser priority." He said he did not believe a significant fiscal impact would be created, but said "...you will be giving a tool that could be utilized effectively and get some of these people's attention."
Senator James stated with the background presented by Mr. Graham, he would be willing to accept a motion to adopt the amendment changing the charge from a gross misdemeanor to a felony. Senator Jacobsen asked Mr. Graham if he believed a felony provision would be a deterrent to a stalker, and Mr. Graham said he thought it would, since the stalkers know if they commit the crime it will not be costly.
SENATOR JACOBSEN MOVED TO ADOPT THE AMENDMENT, INCREASING THE CHARGE OF GROSS MISDEMEANOR TO A FELONY.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS NOTED NO. SENATOR ADLER WAS ABSENT FOR THE VOTE).
* * * * *
Senator James stated the other suggested amendments dealt with the scope of the crime of stalking. He said they had spent a great deal of time discussing the matter of criminalizing the conduct which was brought before the committee in testimony, and not other conduct which is constitutionally protected. Senator James said amendments were drafted which affected the definition of "lawful authority" and "without lawful authority." He said this was not done in the state of Florida, and it was on that basis the law was "struck down as unconstitutional," because it did not sufficiently attempt to define which activities were not covered by the statute.
Senator James stated they had also discussed amending the bill to make the effective date July 1, 1993.
Senator Adler stated he believed the language of the amendments was acceptable.
SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 199, TO INCLUDE ALL AMENDMENTS DISCUSSED.
SENATOR SHAFFER SECONDED THE MOTION.
A discussion followed, before the motion was voted upon. Senator Titus asked if the word "may" would be changed to "must" on page 3, line 7 of the bill. Senator James stated he did not believe this would be an acceptable amendment, because it would take away the discretion of the court to issue orders in cases of stalking.
Senator Smith referred to language on page 2, lines 5 and 6, and asked why the language was not limited to "the site of the work stoppage," rather than letting it go on anyplace. Senator James answered he did not know if there was a way to limit "where you do this kind of protected activity." He admitted it was a valid point, and as long as "freedom of assembly" was involved, it would be allowed. Senator James said although a person might go beyond the bounds of what was "free assembly" and interfere with someone's rights, under the language of the bill it would not be considered "stalking" but could still be dispelled.
Senator Smith stated:
I know of an instance where families were threatened... their homes were watched and stalked, if you want to presume that...and on one occasion physical violence actually occurred...that occurred at a former senator's home. The picketing was not conducted at the plant site. It was carried to the home and to the home of other employees.
Senator James responded this should not be a problem and cited the definition of lawful authority as, "Acts which are protected or authorized by constitutional or statutory law." He said the type of labor demonstration set forth by Senator Smith would not be protected by the constitution. Senator James stated the list set forth in the legislation was a nonexclusive list, i.e., "...including but not limited to...." Therefore, he added, that kind of activity would not be protected and could be considered stalking. Senator James said he felt the discussion was appropriate to be on the record, in order to clarify that matter.
Before the motion was voted upon, Senator Titus stated: "
I am going to support passing the bill as amended, even though I disagree with making it a felony. I think this is a new law...we are breaking new ground...a new crime...we are not even sure if this is going to be unconstitutional. I think we should start by having it as a gross misdemeanor. If that doesn't work out, there is no reason why Ben Graham can't come back next time, like he does every time, to try to enhance penalties....
Senator James stated that was a valid position, and called for the question.
THE MOTION TO AMEND AND DO PASS A.B. 199 CARRIED UNANIMOUSLY.
* * * * *
There was no further committee business, and Senator James adjourned the hearing.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
April 21, 1993
Page 1