MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 30, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:20 a.m., on Friday, April 30, 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 Lori L. Brown
Senator Diana M. Glomb
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Thomas Standish, Attorney, Co-Chairman, Nevada Trial Lawyers Association Domestic Law Committee
William A. Bible, Chairman, Nevada Gaming Control Board
Ben Graham, Lobbyist, Nevada District Attorneys Association
Valerie Cooney, Attorney
Senator James opened the hearing on Senate Bill (S.B.) 74.
SENATE BILL 74: Requires relinquishments and consents to adoption to be witnessed by licensed clinical social worker and furnished to welfare division of department of human resources. (BDR 11-407)
Senator Diana M. Glomb provided testimony regarding S.B. 74. She advised one suggestion provided by the Interim Committee on Adoption was that a licensed social worker be present to witness the relinquishment of a child for adoption. She stated that because of the severe budget shortfalls and reduction in staff, this would be very difficult because of the shortage of social workers. She advised this would be particularly difficult in rural communities where there are a small number of social workers, and in some cases none would be available. She stated that theoretically, it would behoove everyone concerned to have a licensed social worker, who understands adoption procedures, present. However, in practicality, it is not feasible at this time. She advised she has discussed this problem with members of the social services department, and it is the general opinion that S.B. 74 should be indefinitely postponed. She expressed the hope that in better economic times, this system could be implemented.
Senator James asked for confirmation that the law still requires a notarized affidavit at the time of relinquishment. He also asked for confirmation that Senator Glomb believed this affidavit affords enough protection, at least for the interim, to attest that the relinquishment for adoption is an affirmative act.
Senator Glomb replied that she and the department were comfortable with this.
Senator James confirmed there was no further testimony on S.B. 74, and closed the hearing.
The hearing was opened on Senate Joint Resolution (S.J.R.) 9.
SENATE JOINT RESOLUTION 9: Proposes to repeal provision of Nevada constitution which prohibits certain lotteries. (BDR C-243)
Senator James briefly explained the bill. He advised a hearing on S.J.R. 9 was scheduled in Las Vegas, however no one appeared to testify and the hearing on the bill was not held.
William A. Bible, Chairman, Nevada Gaming Control Board, provided testimony regarding S.J.R. 9. He provided the committee a report concerning information and statistics regarding state lotteries. A copy of this report is attached as Exhibit C. Mr. Bible advised that 34 states and the District of Columbia currently operate public lotteries. He further advised that Georgia, Mississippi and Nebraska are in the process of initiating lotteries, each state having had enabling legislation passed in the November, 1992 election. Mr. Bible reviewed the eight tables included in the report, and explained the substance of each. Mr. Bible advised that typically the amounts of prizes in lotteries are functions of the population of a state and the sales of tickets. He advised that Tables VII, VIII and IX, included in the report, show three methodologies of estimating what potential proceeds would be in the state of Nevada. He advised these charts make no assumptions in terms of either the tourist impact, nor the effect of competition in the form of others types of legalized gambling in Nevada.
Senator James asked for and received confirmation that the figures showing potential income have not been adjusted for the effect the lottery would have with the competition in gaming. He stated the corollary is that on the one hand an assumption must be made, but the figure is unknown. Some revenue, currently realized by existing gaming would be lost to lottery, but also some lottery revenue would be lost to existing gaming.
Mr. Bible confirmed this was correct. He stated the statistics in the report were compiled from states which do not have other forms of legalized gaming as widely available as does Nevada.
Senator James referred to Table IV of the report, and noted the small states are in either a zero increase or a decreasing category for revenues.
Mr. Bible agreed, and stated lottery revenue has not proven to be a particularly stable source of revenue. He gave as an example California, which had earmarked some of the lottery proceeds for education. He advised California has had substantial fiscal difficulties in making adjustments in their educational funding mechanisms to compensate for the variability of lottery revenue. He stated that as lotteries get older it becomes necessary to introduce new games and playing mechanisms to retain public appeal. Also, general economic considerations come into play, such as less disposable income for residents of the state.
Senator Titus stated that Assemblyman Petrak was one of the advocates of a state lottery in Nevada. She stated that Mr. Petrak worked with the lottery in Ohio before his retirement, and saw funds go to education. Senator Titus stated she believed that after participating in the interim committee activities, Mr. Petrak has come to the conclusion that a state lottery in Nevada may not be advisable.
Mr. Bible recalled that this was consistent with Mr. Petrak's testimony before the interim study committee.
Senator James stated that Nevada has different types of competition now, such as foreign gaming, which was not present during the interim study.
Senator Lori L. Brown stated that her parents had traveled into California every month to buy lottery tickets, and this did not change their gambling habits in Nevada. She stated her belief that this would be common for residents of Nevada, because gambling in a casino is different than buying a lottery ticket.
Senator James asked if Senator Brown had taken a position on S.J.R. 9.
Senator Brown stated if the lottery could bring in any type of revenue she believed it was a good idea. She stated she believed it should not have an effect on Nevada's gaming revenues.
Senator James confirmed there was no further testimony on S.J.R. 9, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 71.
ASSEMBLY BILL 71: Revises provisions governing return of property retained as evidence. (BDR 4-579)
Senator James briefly described the bill. He advised that a proposed amendment had been distributed to the committee by Ben Graham, Lobbyist, Nevada District Attorneys Association.
Mr. Graham explained this matter goes back to the 1991 legislative session. He stated there was a desire from a senator to address a concern that a constituent had not had property returned in a timely fashion. The property had been stolen and was recovered. Mr. Graham stated A.B. 71 would institute a process whereby an individual can make a request for the return of their property. This property would be that which had been recovered by the police, taken from a burglary suspect, or property which was the object of a suspected theft. Mr. Graham advised A.B. 71 was suggested by the Nevada District Attorneys Association. He stated the original version of A.B. 71 put an unrealistic burden not only on the prosecution, but on the police as well. For that reason, the association is urging a complete amendment of A.B. 71 as passed through the assembly. A copy of the amendment is attached as Exhibit D. The association is asking the Senate Committee on Judiciary to amend the statutes by way of the proposal submitted. Mr. Graham explained the proposed amendment, which allows 120 days for the return of the property after a request is made. The proposed amendment also gives discretion to the prosecutor as to whether the actual physical property is needed, or whether a photograph will suffice. He advised there is much case authority regarding requirements for admissability of photographs.
Mr. Graham advised the main thing A.B. 71 seeks to accomplish is to develop a timetable whereby a decision must be made. The purpose is to avoid a person's property being lost.
Senator Jacobsen asked what would be the disposition of perishable property.
Mr. Graham replied the only time perishable property would be an issue would be items stolen from a grocery store. He stated currently in that instance the clerks are asked to run a tape of everything which was stolen, and the actual items are returned to the store before the value is gone.
Senator Titus asked the disposition of the similar bill in the 1991 legislative session, and what the arguments were against passage.
Mr. Graham explained that the initial bill proposed in 1991 placed an undue burden upon the law enforcement community, making the proposed procedures unworkable. He stated an attempt was made to correct the problem, but the bill ultimately failed.
Senator James stated the current law allows the request to be made, but does not set forth the procedure by which the property is actually returned, nor the obligation of the prosecutor. He asked for and received confirmation that A.B. 71 endeavors to set forth the procedure. He asked if the language in subsection 4 would change the rules of evidence. He asked if there is not a rule in the law that the actual evidence must be presented.
Mr. Graham replied that photographs are admissible in most instances.
Senator James asked if this would include a photograph of a gun.
Mr. Graham replied this is true. He stated he frequently receives requests for return of property such as guns and cars. He advises the person to take a picture of the item with the victim and the serial number visible. The more important situation he finds occurring involves property such as travelers checks, cash, and any other property which might not be available at trial. He stated these are items which people need and will liquidate. Photographs can also be taken of these items with the victim, for identification at the time of trial.
Senator James asked what other types of items could fall into this category.
Mr. Graham replied jewelry, televisions sets, and almost anything subject to theft could be photographed. He stated that generally the property is not returned until after the preliminary hearing.
Senator James asked for confirmation that the law basically allows the evidence to be in the form of a photograph as long as the defense does not object. If that occurred, the actual property would be produced.
Mr. Graham stated this was true, if the property was still available. He advised the property would not be returned without first having photographed the item.
Senator James asked if there is an issue regarding the property, does the procedure in A.B. 71 provide notice to the the defense that the evidence is being returned. He used the example of instrumentality of a crime.
Mr. Graham advised that would not be necessary. He stated if the property was an essential element of the defense, the defense would gladly have it returned so the item could not be produced. He stated that there was a recent incident in which a cement truck hit another vehicle, and the cement company wanted the truck back. The truck was examined by the state, private investigators and insurance company investigators, and was ultimately returned. He advised the return did not occur until all parties had access to examine the truck. He advised A.B. 71 does not change the rules of admissability of evidence.
Senator James asked for and received confirmation that the three criteria listed in section 4 of the bill, relating to photographs, are currently used by the department.
Senator Titus asked why A.B. 71 is needed if the current procedure is to take photographs and return the property.
Mr. Graham replied there is currently no deadline for the return of the property. He stated an indifferent prosecutor could ignore the request for the property's return.
Senator James related the advice of Dennis Neilander, Senior Research Analyst, that, regarding page 2 of the proposed amendment, "i.e." cannot be used. He asked for and received confirmation from Mr. Graham that the removal of "i.e." would be acceptable.
Senator Jacobsen asked what would occur if an animal was confiscated as evidence. He asked if the court was responsible for the care of the animal, and what would happen if the animal died.
Mr. Graham replied the only instance in which this had happened involved a charge of cruelty to an animal. He advised in that case, the state did care for and maintain the animal. He stated if, for example, a dog was stolen, the dog would be returned to the owner.
Senator McGinness asked if the reason the defense is not mentioned in A.B. 71 is that if the evidence is lost it would be to their advantage.
Mr. Graham replied this is correct. The defense would not oppose the bill, because if a mistake is made by the prosecution, due process may be denied.
Senator James confirmed there was no further testimony on A.B. 71 and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 347.
ASSEMBLY BILL 347: Requires equal disposition of community property of parties in proceeding for divorce under certain circumstances. (BDR 11-1446)
Senator James advised Nevada Revised Statutes (NRS) 125.150 would be amended by A.B. 347 and Assembly Bill (A.B.) 435.
ASSEMBLY BILL 435: Provides for disposition upon divorce of property held by parties in joint tenancy. (BDR 11-1448)
Senator James advised if these bills are enacted they would be reconciled to deal with the division of community property. He briefly described A.B. 347.
Tom Standish, Attorney, Co-Chairman, Nevada Trial Lawyers Domestic Law Committee provided oral testimony. He advised A.B. 435 and A.B. 347 arose out of the committee's work for the 1993 legislative session. He advised A.B. 347 proposes some amendments to subsection 1 of NRS 125.150, and there are two facets to the proposed amendments. The first arises out of a decision of the Nevada Supreme Court, entitled McNabney vs. McNabney. He advised in the McNabney case the division by the trial court of community property of the parties was done, not in a 50/50 manner, but in an unequal manner. The trial court set forth the reasons this was a legitimate division, and the supreme court affirmed that division. He advised in its decision, the supreme court also clarified that, under Nevada law, it was appropriate to make an equitable rather than equal division of community property. He advised the decision in McNabney has been somewhat distorted and taken advantage of by counsel in divorce litigation, to the point where the decision is used in every case. He stated the argument usually takes the form that there is no need to make an equal division of community property because the McNabney case allows the distribution to be made equitably in any way the court sees fit, as long as there are reasons to do so. He advised this creates much confusion with the basic tenets of community property law. He stated these tenets call for community property to be divided equally between the parties as a starting point. The law and the statutes then provide for the judge's discretion to make equitable considerations and to not make an exact 50/50 division. He stated A.B. 347 simply makes the statute clearer for the application of community property law and the division of property. He stated his belief that this will cause the arguments between counsel to cease and will clarify the process of dividing community property.
Mr. Standish advised the other revision and change to the statute is at lines 13 through 16 of A.B. 347. He stated certain language in the statute contains words such as "the respective merits of the parties." He stated this is an issue in Nevada which is very unclear. He advised the following history of this language. In the case of Hime vs. Hime and the more recent case of Rutar vs. Rutar, the supreme court had certain language in their decision which was interpreted by the domestic bar to mean that the supreme court approved of a trial court making an alimony determination based upon a perceived moral fault of one party. He stated Nevada has always been a no-fault divorce state, and moral grounds need not be considered by the court. The grounds of incompatibility may be used in Nevada without considering the old common law grounds of desertion, cruelty, adultery and so forth. He advised the supreme court clarified in Rutar that they did not mean to give that definition to the phrase "respective merits of the parties," and indicated they did not know what those words meant. He stated in the domestic bar, there is currently a consideration that "fault" is an issue and may become an issue by a later supreme court decision. He added he has attended many depositions where, instead of focusing on the children and property, a line of questioning follows questions implying fault of one of the parties. He stated this information is extraneous and causes litigants extra expense. He advised that if issues go forward in court, it will cause a staggering amount of cost to the system.
Senator James asked if, when an objection is made to this line of questioning, this statute is cited as the grounds for exploring that area.
Mr. Standish replied the words "respective merits of the parties" could have that definition. The supreme court has made it clear that they have not defined it at this point, but it is certainly open to argument. He stated that, in this day and age, the way litigation works is that if that issue has a possibility of existing and the attorney is aware it may be a subsequent issue, it must be pursued. Therefore lawyers, to protect themselves against a possible claim of malpractice, are going to canvass this area, go into it, and litigate it in order to avoid being accused of not fully representing the client. He stated there is no definition, but there is a presumed definition, which creates the problem. He advised he has never had a case in 13 years of practice in which a judge used the words "merits of the parties." He stated his belief that this phrase has generally been ignored in the practice of domestic law. He said the concern of the domestic law committee is the premonition of the bar as to what the supreme court might do, and that speculation is causing a lot of damage. He advised the problem is not simply the cost or the hardship of divorce cases, but the effect this will have on children. Children are very much affected by divorce as it is now. There is enough emotionalism, arguing, separation of property and finalizing the divorce. He stated that adding the fault issue back in and allowing it to continue in that way is devastating to children and problems continue to mount.
Senator James asked if the phrase "merits of the parties" occurs anywhere else in the statute.
Mr. Standish stated to his knowledge, it did not.
Senator James asked for confirmation that a case is currently on appeal in which this would apply.
Mr. Standish advised that in the Rutar decision about 1 year ago, the court expressly said they did not define those words. He advised that this decision left the door open to future problems.
Senator James asked if Mr. Standish was aware of a pending case in which the parties have raised this issue.
Mr. Standish stated to his knowledge, there was no such case pending. He stated tthe problem is not that anyone expects the supreme court to rule in that manner. He stated his belief is the bar's premonition and lawyers' paranoia which is forcing them to pursue every issue they may be required to pursue which is causing the problem.
Mr. Standish stated that in A.B. 347 the phrase "merits of the parties" would be deleted. He advised there was some concern earlier regarding the reference on lines 15 and 16 regarding burdens imposed upon property for the benefit of children. He stated the court's discretion and power to award property, separate or community, for the benefit of children is well established in other parts of the statutes. He advised that eliminating this language from this part of the statute will not create problem or restrict the powers of the court.
Mr. Standish advised in subsection 4 of the current statute, the word "separate" is in italics. He stated this is not an amendment to the statute, but was printed that way in the original version of the statute.
Mr. Standish reiterated his belief that the court's power in this regard is well defined in other parts of the domestic statutes.
Senator Jacobsen asked how "equal disposition" is carried out.
Mr. Standish replied the court ultimately decides the way in which each asset will be distributed. He advised this is why A.B. 347 states that, as far as practicable, there will be an equal division. He advised some assets cannot be divided in half. He stated his belief that all judges look to what constitutes the community property estate, attempts to see what an equal division would be, and then exercise their discretion as to how the property should be distributed.
Valerie Cooney, Attorney, provided oral testimony on A.B. 347. Ms. Cooney advised she practices mainly in the area of family law. She stated she believes the amendments to A.B. 347 need to be passed. She advised members of the practicing bar have concerns regarding the considerable threat of malpractice. She stated these threats are pervasive and extensive. She stated her belief that the use of the Hime decision and its dicta should be looked at very closely as it relates to fault in the resurrection of bad behavior by a party, to be considered in the determination of a divorce. She stated that, given the Hime decision, if the issue of fault is not examined attorneys may well find themselves subject to lawsuits by unhappy litigants. She stated she did not believe the fault language serves any purpose in this case. She agreed with the language proposed by Mr. Standish, and urged the passage of A.B. 347.
Senator James asked if Ms. Cooney had looked at the legislative history of the language "merits of the parties."
Ms. Cooney stated she had not examined the legislative history.
Mr. Standish advised he had not examined the legislative history. However, he stated his belief that it is clear the language was enacted some time ago, and in the present arena of divorce litigation those words of the legislature can be interpreted by the courts. He stated it is the impression of the bar and their speculation which is currently causing the problem. He stated the domestic committee does not believe this language should be included in the statute.
Senator James wondered why, if the language has been in the statute for so long, the courts have never interpreted it as being a fault-based provision.
Ms. Cooney stated the difficulty is the Hime decision, handed down within the past three to four years, and the wide variety of interpretation by practicing attorneys. She advised this has created enormous problems for attorneys practicing domestic law.
Senator James asked Mr. Standish to provide the committee with a copy of the Hime and Rutar decisions.
Senator Adler stated his belief that at least 50 percent of attorneys in Nevada now think that fault is relevant in divorce cases. He advised many times clients will relate stories to attorneys about alleged misconduct of their spouses. He gave the example of a husband cheating on his wife, and the wife requesting the girlfriend be subpoenaed. He stated under the Hime decision, the attorney is obligated to depose the girlfriend regarding the extramarital affair. He advised this is not only expensive but causes a very messy divorce when these things are explored.
Ms. Cooney agreed and stated she is commonly faced with a wife telling her about the husband's behavior. The wife asks if this does not count in the divorce. Ms. Cooney stated this puts her in a very difficult position. She wants to discourage this, as she does not believe fault is proper in a divorce. However, she has grave concerns regarding the potential exposure for malpractice in this situation.
Senator Jacobsen asked if there have been many suits for attorney malpractice in the family law area.
Ms. Cooney replied there are probably nearly as many malpractice cases filed in the area of family law as in medicine. She advised family law practitioners are subject to suit on a regular basis.
Senator Jacobsen asked if malpractice insurance can be obtained.
Ms. Cooney and Mr. Standish both replied that this insurance is carried by attorneys.
Senator James confirmed there was no further testimony on A.B. 347, and closed the hearing.
The hearing was opened on A.B. 435.
Mr. Standish advised A.B. 435 deals with a separate section of NRS 125.150. He advised the concepts of joint tenancy and tenancy in common exist in Nevada. He explained joint tenancy is a way of holding title which provides that if one of the joint tenants should die, the remaining of the joint tenants take 100 percent of the property by operation of the law, rather than by operation of the probate court. Tenancy in common is two or more people who hold an undivided interest in property. At the time of the death of one of the tenants, their share of the property automatically passes through probate, to be distributed to the deceased person's heirs. He stated married people, in almost all cases, hold property as joint tenants. He advised the intent of the legislature regarding the present language of the statute was that the court would look to the party through whom the property was acquired. He stated this means if someone came into the marriage with a piece of property, which went into both names during the marriage, the court would look to who initially owned the property. The court would then use that determination in distributing the property. He advised over the years there have been a succession of decisions which have taken a different interpretation. That interpretation has been placed on joint tenancy property held by married persons. He stated the law of gift has essentially been applied to those types of transfers where a party places property title into joint tenancy. The law of gift has a very strong presumption that when a person makes the transfer, that person intended to give one-half of the property to the other party. When the litigants come into court, the burden is on the person who transferred the property to show that it was not that person's intention to make a gift of one-half of the property. He stated this is a very hard burden to overcome, and must be done by clear and certain evidence. Mr. Standish stated in his experience, this means something tantamount to a written agreement saying the person put the property in joint tenancy, not to apply in a divorce situation, but for some other reason during the marriage. Mr. Standish believes it is a practical impossibility to overcome the presumption.
Mr. Standish advised what is being proposed in A.B. 435 is to classify joint tenancy property as community property, and to allow either party to establish by clear and convincing evidence that they have a separate property interest in that asset. He advised this is the same standard which is currently applied to any type of personal property in a divorce. He stated this is the concept of tracing. If a person can show the court clear evidence that they have a separate property interest, and the court feels the burden to prove that interest has been met, the court can divide that property by recognizing the separate property component. The remainder is then divided as community property. He advised that Malmquist vs. Malmquist, a recent decision of the supreme court, deals with varying and competing interests, separate of each spouse in one piece of real property. The court set forth a formula with variables whereby each component could be entered into the formula whereby the ratios and interest could be computed in a logical and fair basis. He stated the reason he feels A.B. 435 is a good amendment to the current statute, is that joint tenancy transfers happen all the time, and not only with the intent of giving property to a spouse. He gave an example of pledging a piece of property as collateral for a debt, such as refinancing. The property would more than likely be placed into joint tenancy, as the lender will not allow only one party to sign the promissory note. He advised lenders will not insure title to property unless both parties' names are on the property. He stated many people put property into joint tenancy during a marriage to avoid the property going through probate. He advised many people simply think they are supposed to put property in joint tenancy when they are married. Mr. Standish stated that, for all of these reasons, simply applying the existing principles of community property and tracing to a joint tenancy piece of property is the correct way to manage the problem. He stated his belief this will eliminate the current state of the law which has the gift presumption.
Senator James asked for confirmation that A.B. 435 would not help a client who states intention to put property into joint tenancy.
Mr. Standish agreed that would be correct. He stated if the client could show the property was held by he or she before marriage, the court could make the determination.
Senator Adler stated many of his clients place property in joint tenancy to avoid probate, with no intention to convey the full value of the property during their lifetime.
Ms. Cooney stated sometimes a person places property in joint tenancy to maintain an amenable marital relationship. She stated a problem occurs when, in short-term marriages, an asset which has been owned for a long period of time by one party is in question as to whether it is community property.
Senator James asked for confirmation that none of the things mentioned would overcome the presumption of the law of gift, even with the changes in A.B. 435.
Mr. Standish stated he believed the changes proposed would overcome this presumption. He advised it would allow the person to show tracing of the asset, and the court could separate out that portion of the asset, declaring it separate property. He advised the burden would fall equally on both parties to determine if an intent to gift the asset existed. He advised A.B. 435 would not change anything except to eliminate the difficult presumption of gift, which automatically makes a 50/50 division.
Senator James asked if a person stating his or her intention to place property in joint tenancy to avoid probate would be clear and convincing evidence to overcome the presumption.
Mr. Standish stated his belief that this would not be something the receiving party could claim to be an intention to gift half of the property.
Senator James asked how this would avoid that claim. He stated if property is placed in joint tenancy, that means the person wishes the property to pass outside his or her estate to the other joint tenant, if the person dies. He stated if the person did not want that to happen, he or she would place the property in his or her name and the property would pass through that person's estate to beneficiaries, or in testate succession.
Mr. Standish advised that in the community property law arena, it is presumed that if the asset is held in both parties' names, and was acquired that way during the marriage, it is a community property asset. He advised either party is entitled to rebut that presumption by showing by clear and convincing evidence that a portion of the property was from separate property ownership of that spouse. He stated whether or not there was an intent to gift the property is something that, on the balance of the evidence, the court can do something about. He advised the transfer itself is, at that point, no longer the key to the court's decision.
Senator James asked for and received confirmation that it is then incumbent upon the other person to come in and prove that it was a gift. He stated his agreement with Mr. Standish's presumption in this regard.
Senator James confirmed there was no further testimony regarding A.B. 435, and closed the hearing.
Senator James announced that Friday, May 7, 1993 is the last day the Senate Committee on Judiciary will consider requests for bill drafts.
Senator James opened the work session regarding bills previously heard in committee.
The hearing was reopened on S.B. 74.
SENATOR SHAFFER MOVED TO INDEFINITELY POSTPONE S.B. 74.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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The hearing was reopened on S.J.R. 9.
SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.J.R. 9.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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The hearing was reopened on A.B. 71.
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 71.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
The hearing was reopened on A.B. 347. Senator James advised the committee would review the supreme court decisions mentioned in testimony, and this bill will be scheduled for an upcoming work session.
The hearing was reopened on A.B. 435.
SENATOR ADLER MOVED TO DO PASS A.B. 435.
SENATOR MCGINNESS SECONDED THE MOTION.
Senator Titus stated she would vote for passage of A.B. 435, given the current transitory nature of marriage. She stated, however, she believed this change will make it easier for people to change their minds. She stated her belief that joint tenancy indicates a gift to the other person, regardless of the reason.
Senator Adler stated he believed too much sophistication was being read into most peoples' perception. He stated most people do not know what joint tenancy means, and for this reason, he favors the bill.
Senator James advised the committee should recognize A.B. 435 changes the statute from something which was a fairly clear bright line rule, to one which may invite more litigation. He stated it seemed, through the questioning of Mr. Standish, that at least a procedure has been set out and it is clear who has the burden in each circumstance, and what is the burden. He stated this is why he was concerned that if someone stating his or her intention was to avoid probate, how the parties would stand. He stated he understood that the presumption could be overcome by showing the tracing. The other party would then have the burden to come back and show the intention was a gift.
Mr. Standish agreed this presumption was correct.
Senator James asked if these provisions would blur the distinction between joint tenancy and tenancy in common.
Mr. Standish stated it would not. He advised a property deed must affirmatively state joint tenancy for it to be such. He advised that if the deed is silent, it is then tenancy in common by operation of law.
Senator Titus asked Mr. Standish to explain the difference.
Mr. Standish advised in a tenancy in common, if one tenant dies that person's half of the property remains in his or her estate.
Senator James reviewed the motion on the floor.
THE MOTION CARRIED UNANIMOUSLY.
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The hearing was opened on Senate Bill (S.B.) 259.
SENATE BILL 259: Authorizes person who receives wire or oral communication to record communication under certain circumstances. (BDR 14.1240)
Senator James advised the question presented by Senator Brown, the proponent of the bill, is whether the one-party consent rule should apply to the crime of stalking or aggravated stalking with the procedural guidelines set out in the amendment to S.B. 259.
Senator Adler advised he is still in favor of the bill. He stated his belief that if someone is being stalked they should be able to record a conversation with the stalker. He suggested that if S.B. 259 is not passed, the penalty for inadvertent taping of a conversation, now a felony, be reduced to something commensurate with the crime. He stated in the current law, that if a person was being stalked, taped a conversation and presented it to law enforcement, that person would be guilty of a felony. This would be true even if the person was not aware the taping was against the law. That tape could not be used against the stalker.
Senator James advised another option would be to add stalking to the list of crimes for which a wiretap could be obtained.
Senator Adler agreed that would be an option, but would not take care of a person who innocently tapes someone with an answering machine. That action would still be a felony, which he stated he believed was not right, especially if the person was being threatened. He stated most people assume they can tape a conversation.
Senator James advised the current statute would not take care of that situation. The process described in the bill is deliberate, for which an order would have to be obtained 24 hours before use.
Senator Adler agreed, and stated the only alternative would be to add it to the list of crimes for which a wire-tap can be obtained.
Senator James advised his view is that the stalking bill will probably be passed, which is a substantial step in dealing with that crime. He stated it is unknown what types of evidence will be necessary to attempt to prosecute the crime. He advised there is justifiable concern regarding continuing to open up the wiretapping provisions and one-party consent rules for crimes in general. He stated he would be in favor of allowing law enforcement mechanisms to go into effect before furthering the issue of one-party consent rules. He stated S.B. 259 would not protect a person who is being stalked and innocently tapes a conversation. Taping is an elaborate procedure and law enforcement would have to be involved to comply.
Senator Adler disagreed, and stated the person being stalked could tape a threatening call and notify the police. The police would then get the order authorizing the wiretap within 24 hours. He advised he did not see this as being interpreted as the police and victim entering in concert together. Rather, this would allow the tape to be used in evidence. He stated his belief that the crime of stalking is going to be very difficult to prove, if the only witnesses are the stalker and the victim. The victim would state he or she received the communication and the stalker would deny making the call. Senator Adler did not see how the crime could ever be proven up without some sort of recording.
Senator James advised that S.B. 259 goes beyond that, adding stalking to the list for which there is a wiretap. He asked if Senator Adler favored that part also.
Senator Adler stated he favored both parts, and reiterated he did not see how the stalker would be convicted otherwise.
Senator Titus reiterated she does not support opening up the one-party consent, and did not agree with it being available. She agreed that stalking has been recognized as a serious problem. She stated she would support adding stalking to the wiretap law, but not allowing an individual to do the taping and using that tape for evidence.
Senator James stated if he had to support one thing it would be allowing a person to push the phone recorder, but not allowing people to listen to the conversations. He stated this is an intrusion on the privacy of the person who does not know he or she is being recorded.
SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 259.
SENATOR SMITH SECONDED THE MOTION.
Senator Adler stated he would be voting no on this motion. He wondered why the stalking law should be passed if no provision is made for the victim to bring in evidence. He stated his belief that S.B. 259 provides that provision.
Senator Titus agreed that evidence was needed, and that possibly it could be obtained over the telephone. She stated, however, that stalking is a continued occurence which goes on and on. She stated she did not feel it was necessary to open up one-party consent to have the first conversation taped, if a wiretap can be obtained within 24 hours.
Senator Adler stated his belief that this might be the only concrete evidence obtainable. He did not see any reason to destroy this evidence. He stated the evidence would be reviewed within a 24 hour period, and did not see anything wrong with the provisions in S.B. 259.
Senator Shaffer agreed with Senator Adler, and stated he would vote no on the motion.
Senator McGinness stated the provisions might be helpful in some instances where the stalking escalated in a short period of time. He advised for this reason, he would vote no as well.
Senator James stated there are other crimes for which the only method of proof is by recording telephone calls. He stated if the provisions of S.B. 259 are passed for stalking, they should be passed for the other crimes as well.
Senator Titus advised that murder, kidnapping, robbery, extortion, bribery, and destruction of public property by explosives could all be proven in this way. She advised if the door is opened for one-party consent for stalking, the door should be opened for these other crimes. She reiterated that if the wiretap can be obtained within 24 hours anyway, that door should not be opened. Rather, stalking should be placed on the list for wiretapping.
Senator James reviewed the motion on the floor.
THE MOTION FAILED. (SENATORS JACOBSEN, ADLER, SHAFFER AND MCGINNESS VOTED NO.)
* * * * *
SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 259.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS JAMES, TITUS AND SMITH VOTED NO.)
* * * * *
The hearing was opened on Senate Joint Resolution (S.J.R.) 25:
SENATE JOINT RESOLUTION 25: Proposes to amend Nevada constitution to create intermediate appellate court. (BDR C-1907)
SENATOR SMITH MOVED TO DO PASS S.J.R. 25.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS VOTED NO.)
* * * * *
Senator James advised the committee had received a request for introduction of BILL DRAFT REQUEST (BDR) 11-1895. He advised this BDR proposes to amend the statutes regarding child support.
SENATOR ADLER MOVED FOR COMMITTEE INTRODUCTION OF BDR 11-1895.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James advised a request for a bill draft was given to him by Judge Gamble, on behalf of the Nevada Judges Association. Senator James advised the statute concerned was apparently enacted during the 1991 legislative session. He read the section of the statute which the bill draft request addresses:
On a plea of guilty or nolo contendere to another offense, the defendant and the district attorney may agree to recommend an appropriate punishment. The court may defer its decision upon the recommendation until it has considered the pre-sentence report. If the court accepts the recommendation it shall impose the specified punishment or a lessor punishment. If the court rejects the recommendation, the defendant may withdraw the plea.
Senator James advised Judge Gamble had told him the judges are opposed to this because of the way it limits the judges' discretion in sentencing. All the court can do is reject the recommendation if it doesn't agree with the punishment or a lessor punishment. In this case the defendant withdraws the plea and 6 weeks worth of work is lost. The Nevada Judges Association wishes to repeal this entire section.
SENATOR SHAFFER MOVED TO REQUEST A BILL DRAFT REQUEST UPON JUDGE GAMBLE'S RECOMMENDATION.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Senator James confirmed there was no further testimony to come before the committee, and adjourned the meeting at 12:45 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
April 30, 1993
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