MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 16, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Wednesday, June 16, 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 Raymond C. Shaffer
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
Senator Dina Titus (Excused)
GUEST LEGISLATORS PRESENT:
Assemblyman Scott Scherer
Assemblyman Christina R. (Chris) Giunchigliani
Assemblyman P.M. Roy Neighbors
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Valerie J. Cooney, Attorney, Member, Nevada Trial Lawyers
Association
Peter Jaquette, Attorney, President, Family Law Section,
Nevada State Bar Association
Andrea L. Engleman, Lobbyist, Nevada Press Association, Inc.
Frank A. Barker, Lobbyist, Las Vegas Metropolitan Police
Department
Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby
Samuel P. McMullen, Lobbyist, Nevada Broadcasters Association
William A. Bible, Chairman, Nevada Gaming Control Board
Fred Welden, Chief Deputy Research Director, Legislative
Counsel Bureau
Senator James opened the hearing on Senate Bill (S.B.) 540.
SENATE BILL 540: Provides for use of unsworn declaration under penalty of perjury. (BDR 4-1862)
Senator James advised there is a federal statute which allows, in most instances, a declaration made under penalty of perjury as a substitute for an affidavit. Senator James requested the Legislative Counsel Bureau (LCB) to draft a similar statute for Nevada. He stated S.B. 540 would allow people to not have to have a signature notarized or sworn. Instead, a person can declare under penalty of perjury that the statement made is true and correct. He advised in addition, there is a penalty of perjury set forth separately in the statute. This would apply to anyone committing perjury, or to subordinate perjury. This provision is set forth in Nevada Revised Statutes (NRS) 199.120. Senator James confirmed there was no testimony on the bill.
Senator Jacobsen what was meant by subordination of perjury.
Senator James advised this would be to induce or assist another person in offering perjured testimony to a tribunal.
Senator James confirmed there were no further questions from the committee.
SENATOR SMITH MADE A MOTION TO DO PASS S.B. 540.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS ADLER, SHAFFER, AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 196.
ASSEMBLY BILL 196: Authorizes operation of charitable bingo by qualified organization. (BDR 41-1007)
William A. Bible, Chairman, Nevada Gaming Control Board, provided testimony. He advised A.B. 196 was introduced by Assembly Speaker Dini to allow the board to authorize bingo games, without benefit of licensure, which are operated by certain nonprofit organizations. He advised the bill was started as a simple amendment to NRS Chapter 463.409. The Assembly Committee on Judiciary, on considering that amendment, appointed a subcommittee to review the issue and perhaps tighten up the provisions. Mr. Bible advised the current version of A.B. 196 appears relatively complicated, but is modeled after the legislation processed in the 1991 legislative session, which allowed charitable lotteries. This legislation has a three-tiered process of approvals, registration, or simply allowing a charitable lottery to operate. It puts regulatory controls in place, and establishes definitions to guarantee that the operation is managed by a qualified charitable organization. In the case of A.B. 196, that would be defined as a bona fide charitable civic, educational, fraternal, patriotic, political, religious, or veterans' organization that does not operate for profit. A.B. 196 indicates the activities must be conducted on behalf of charitable or nonprofit organizations. The bill provides a regulatory structure to deal with problems with the games or individuals operating the games. This allows the board to call those individuals forward and subject them to a finding of suitability, the same as would be true of other individuals involved in other gaming operations. Mr. Bible stated having reviewed the amendment leading to the first reprint of A.B. 196, he believed it provides the same degree of regulatory controls which currently exist in the charitable lottery situation, and should be of assistance to the gaming control board in authorizing and allowing various nonprofit groups to operate bingo games throughout the state.
Senator Smith referred to page 2, section 8 of the bill. He stated the three different levels of prizes offered are $500,000, $50,000 and $2,500 per calendar quarter. Senator Smith asked for clarification of these provisions.
Mr. Bible replied these are the three thresholds of approval. The amounts are the basis upon which various approvals and filings are needed. Each level requires a higher level of review by the gaming control board.
Senator Smith stated he is interested in the veteran's organizations. He asked if any part of this bill would be limiting to one Veteran's of Foreign Wars (VFW) post, or one American Legion post.
Mr. Bible stated each application would have to be location specific.
Senator Smith asked if a ticket could be sold which would be good statewide.
Mr. Bible stated this bill only applies to bingo games, which would not involve a ticket. He advised lotteries are a different circumstance. Lotteries have a provision in the code which indicates the ticket may only be sold in the primary county where the lottery is being drawn, and the contiguous counties. He referred to discussion he had with the VFW, who was trying to arrange a statewide ticket sale. He stated he believed the problems were worked out with that effort.
Senator Smith stated he iss also interested in the senior center in Overton.
Mr. Bible advised he talked with Mr. Morris from that facility in 1989 or 1990. Mr. Bible advised the impediment there was that the existing law only allowed one game per year. He advised the impetus for A.B. 196 was some enforcement activity which took place at a senior center in either Stagecoach or Silver Springs, where a bingo game was being played every week. A.B. 196 would allow the gaming control board to approve those types of activities on a charitable basis.
Mr. Bible advised that, while this may appear bureaucratic, the charitable lottery processes have not proven to be just bureaucratic. A person within the agency has been appointed to handle the applications. Mr. Bible's counsel to that person has been to assist the organizations in structuring these types of activities to be sure they can comply and conform with the provisions of the code.
Senator Jacobsen asked how the necessity of reporting would be determined if an organization did not know how much money they would raise.
Mr. Bible stated section 13 of the bill provides for a financial report to be submitted for any qualified organization which receives approval, under the provisions of section 8.
Senator Jacobsen asked what the procedure would be if, for example, a car was given away.
Mr. Bible advised that as long as the prizes aggregate the organization into the approval thresholds in section 8, that organization would be required to submit financial reports.
Senator Jacobsen stated he was referring more to a statewide activity, such as that mentioned by Senator Smith, for example to raise money for a veterans' home.
Mr. Bible stated in that case, he would see each bingo game as being drawn specifically at the location, which is different than a ticket sale of a lottery. He recalled the activity referred to by Senator Smith, and stated the board structured that activity so there was four different regional lotteries which were conducted, and consolidated as part of one total lottery.
Senator Jacobsen referred to money which was raised for a veterans' cemetery. He said one or two separate groups were advertising that money raised would go to the veterans' cemetery. It was discovered that there was no accounting. People who had contributed money asked for receipts, but none were available.
Mr. Bible stated that group may have been somewhat ahead of the law. He advised A.B. 196 has financial reporting requirements. It also requires persons affiliated with the organization to be employees of the organization, and no one but an employee can be compensated out of the prize money collected. The intent is to get those people, not part of the normal group, out of the process. This would avoid people from another state, for example, from coming in and settting up these activities, and preying upon the organization.
Senator Jacobsen asked if the gaming control board will furnish information regarding the rules to someone applying to host one of these functions.
Mr. Bible advised a form has been furnished for organizers of the lotteries, which provides the information required in the statute. The applicant fills out the form, and the gaming control board indicates back to them what the rules are in terms of the operations. He anticipates a similar procedure will be implemented for the bingo games.
Senator Jacobsen stated this is important, especially for the rural areas.
Mr. Bible said he recognizes this. He knows that most of these groups do not have access to the gaming regulations, and few of them will be reading the statutes. He advised the gaming control board tries to do some outreach to inform the groups as to the requirements, so they can comply.
Senator James asked if there exists a charitable statewide lottery.
Mr. Bible replied lotteries cannot be operated on a statewide basis. He reiterated that the parameter of the law is that tickets can only be marketed within the primary county where the lottery is going to occur, or the contiguous counties. This was put into law as a fairly specific consideration by the legislature in the 1991 legislative session. He advised this has only presented one impediment, which was the situation referred to by Senator Smith. He advised that if that provision is to be changed, he would like to see a provision for an executive override.
Senator James confirmed there was no further testimony on A.B. 196, and closed the hearing on the bill.
SENATOR MCGINNESS MOVED TO DO PASS A.B. 196.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SHAFFER AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on 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 Senator Adler has received a proposed amendment, to resolve conflicts and making substantive changes. He advised the main substantive change is in subsection e, which provides that any appreciation in the property is subject to disposition as community property. This would provide that property held in joint tenancy, where there is appreciation in the property, would be divided. He asked Senator Adler if there is a case of distinction of appreciation of the property occurring through community efforts and appreciation occurring not through community efforts.
Senator Adler advised those types of fine distinctions result in problems. He stated the first presumption is that the property is a gift, and that there are good arguments in this regard. There are also good arguments for A.B. 435. He advised this is a midway position, which allows a person to trace separate property and get that investment back. Any appreciation of that separate property then becomes community property.
Senator James stated he was not sure it was fair to require the property to be community.
Senator Adler stated he did not believe it was too bad. He gave an example of people getting married, and a piece of property of one of the parties is put in joint tenancy, and the marriage lasts 30 years. He stated he did not believe it was unfair to split the appreciation in value of the property, because of the long term marriage. In a short term marriage, for example a year, the property will not appreciate anyway. In that instance, it would be fair for the original owner of the property to get his or her investment back. He stated the attractive thing about the proposed amendment is that it essentially distinguishes between short term and long term marriages.
Senator James stated he disagreed with that. He stated the proposed amendment is going against the presumption of gift. The presumption can be overcome by showing that it is separate property. The proposed amendment gives some of that separate property back to the community. He stated his belief that there needed to be a reason for giving the property back to the community. It would be fair in a case where community efforts or funds improve the property to give the community a lien on half of the property. It would not be fair if the property is unimproved, and has only remained an investment.
Senator Shaffer asked for and received confirmation that a value would be established by way of an outside appraisal, and that appraisal would include appreciation.
Senator James advised this is what the proposed amendment would do. It would give half of the appreciation increment value to the community.
Senator Adler advised this is essentially the same as California law.
Senator Jacobsen asked in the case of a short term marriage, would the value be determined on the day of divorce, or the day of the marriage.
Senator Adler stated there would be two values. He gave the example of formerly separate property, being put in joint tenancy immediately after marriage. There would be a value as of that date, and another value as of the date of the divorce. The two values would be compared to determine the appreciation. The spouse who originally owned the property would get back the original investment if it was determined not to be a gift, and each spouse would get half of the appreciated value.
Peter Jaquette, Attorney, President, Family Law Section, Nevada State Bar Association, provided testimony. He stated his understanding of the purpose of the original bill is to protect spouses in short marriages, where property is placed in joint tenancy and the presumption of gift applies. He stated the current statutes provides for the return of that property to the party having it in the beginning. This can be done if the court believes it is fair and equitable to do so, and the separate property transferor overcomes the presumption of gift by clear and convincing evidence. The most obvious example is someone who refinances a home and the lender reuests that the property be put in joint tenancy. The intention was not to give half of the house as a gift. Mr. Jaquette advised in many cases in Nevada, the district court finds exactly that, and the property is returned to the original spouse. Therefore, it is not the case under existing law that the property is always divided equally between the two spouses. He stated his belief that if the bill is left as it is, the fears which were originally raised are not as great as they might have been. He stated the executive counsel of the Nevada State Bar and the Nevada Trial Lawyers Association have been discussing this legislation and have come up with a compromise, which they believe addresses all of the concerns which have been raised so far in the bill. He advised that, under Senator Adler's proposed amendment, the district court would have very little discretion in terms of returning the original investment to the separate property transferor. The court would have discretion with regard to the increase in value.
Senator Adler stated the person would still have to overcome the presumption of gift, before the court would split the appreciation of value.
Mr. Jaquette stated if the tracing is shown, the property is automatically given back. He advised his organization has used the California rule to draft a proposed amendment. The California rule states if tracing is proved, in other words the property came from separate property, the value is returned as of the date of transfer. No interest or appreciation is returned. The balance of the property is treated as community property.
Senator Adler stated his belief that this is what his proposed amendment states.
Mr. Jaquette advised his proposed amendment further states the joint tenancy property is to be treated as community, except that if one party makes a claim for separate property contribution, the court may return that contribution to the transferring party. Guidelines are established for this determination, including the length of the marriage and the intention of the parties. His organization wants the district court to still have the discretion with regard to the original investment. He gave examples of marriages in which this choice needs to be a possibility. Mr. Jaquette presented to the committee the proposed amendment to A.B. 435, which incorporates those provisions enumerated. A copy of this proposed amendment is attached as Exhibit C.
Senator James asked for and received confirmation that, in this proposed amendment, there is no discretion regarding appreciation in value.
Mr. Jaquette added that once the appreciation gets to the community, it would then fall under equitable division of the community assets.
Senator Adler asked for and received confirmation that Mr. Jaquette essentially supports the California rule, but without having such a firm presumption as to whether the initial investment is returned.
Mr. Jaquette stated his belief that his proposed amendment better covers the subject, than the amendment proposed by Senator Adler, and should be inserted as a new section 2. He stated something must be done, and referred to A.B. 347, passed in the 1993 legislative session.
ASSEMBLY BILL 347: Requires equal disposition of community property of parties in proceeding for divorce under certain circumstances. (BDR 11-1446)
Mr. Jaquette stated A.B. 347 handles only property designated as community, and specifically omits joint tenancy property, which up until the passage of that law had been divided as though it were community property.
Valerie J. Cooney, Attorney, Member, Nevada Trial Lawyers Association, provided testimony. Ms. Cooney confirmed that her association had assisted in drafting the amendment proposed by Mr. Jaquette. She confirmed that the association is in support of A.B. 347, and the amendment proposed by Mr. Jaquette.
Senator Adler advised Mr. Jaquette's proposed amendment appears to him to address concerns of the subcommittee. He agreed there needs to be a firmer rule regarding division of property.
Senator Jacobsen asked if there is any type of time limit or sunset on community property. He gave the example of 50 years.
Mr. Jaquette advised the only thing that would happen over 50 years is it becomes more difficult to trace, and claim the separate property investment. He stated the court could find that the equities have shifted over 50 years, so that the court would less likely to return the property to the separate property transferor.
Senator Adler stated his belief that in the average 50 year marriage, everything would end up community property.
Senator Smith asked if this bill would apply to people who live together for a long period of time, then marry and shortly thereafter, divorce. He wondered what the disposition would be of the property acquired before they were married. He asked if the terminology in the bill regarding the length of marriage should be changed to include people living together.
Ms. Cooney stated those types of property interests have been characterized as quasi-community property. She advised this has been addressed by the supreme court, in decisions addressing the division of property and has attempted to make determinations regarding ownership.
Mr. Jaquette stated the Nevada Supreme Court handed down a decision in 1992, regarding community property by analogy and property held as though it was community property in unmarried situations. He stated there is currently a statutory scheme which defines community property as of the date of the marriage, and property acquired during the marriage. He stated he did not think it would be appropriate to insert a change as dramatic as altering that relationship in a bill of this nature.
Senator James referred to the definition of contributed separate property for acquisition of joint tenancy property. He asked why payments of interest, insurance and taxes are excluded.
Mr. Jaquette stated the language was borrowed from California legislation. He stated his belief that the theory of insurance and taxes is that these things do not directly enhance the value of the property.
Senator James stated his belief that Mr. Jaquette's proposed amendment is more fair than the original bill. The proposed amendment attempts to do equitable distributions and to allow the court discretion to consider the factors. He stated he is not sure it would be easy to litigate these issues. He suggested it is almost like saying to the court, "do what you think is right." He stated the old bright line rule of gift presumption was hard to overcome, but had the benefit of certainty, and less litigation. He advised the language of the original bill would have the same benefit of certainty. The proposed amendment does not have much certainty regarding the outcome. He stated the question of whether something is an improvement or maintenance will be heavily litigated. He stated that he does support the language of Mr. Jaquette's proposed amendment. He stated his belief it is fair for the court to be able to work out fair solutions regarding distribution. The amendment clearly does this, but does not give people much predictability in managing their assets.
Mr. Jaquette stated there is always a tradeoff between certainty and the opportunity to do what is fair. Unless one side or the other is chosen, there will always be that tradeoff. He stated this decision is the function of judges.
Senator James agreed, but stated this bill, as amended, would abolish a bright line rule established by judges.
Mr. Jaquette disagreed. He stated what is being abolished is overcoming the presumption of gift by clear and convincing evidence. He stated that, according to one family court judge, this is the single most litigated area of divorce property.
Senator James asked if the presumption of gift was a judicially created rule.
Ms. Cooney stated the language of NRS 125.150 does not specifically raise a presumption of gift. The language in the statute has been interpreted by the courts and attorneys to raise that presumption. She stated that the presumption that the transfer of title from an individual to joint tenancy is greatly litigated. It is a common source of posturing by attorneys, and aggravation of judges. She stated her belief that Mr. Jaquette's proposed amendment will go a long way to control and limit some of that.
Senator Jacobsen asked what is meant by the term "the court," in for example the statement, "the court will make a judgment."
Ms. Cooney replied the judge makes these determinations. She advised if the parties cannot decide among themselves how the property is to be divided, it will be decided by the judge. She advised some judicial districts have other intermediaries who attempt to negotiate settlements. These include mediators and other types of facilitators. However, when no one else can make the decision, it is made by the judge.
Mr. Jaquette advised that his proposed amendment would only apply to section 2 of the bill.
Senator James confirmed that there was no further questions or testimony regarding A.B. 435.
SENATOR SMITH MOVED TO AMEND AND DO PASS A.B. 435, THE AMENDMENT TO BE THAT PROPOSED BY MR. JAQUETTE.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 530.
ASSEMBLY BILL 530: Revises provisions governing amount of money paid to jurors and witnesses for their service and travel. (BDR 1-1321)
Assemblyman P.M. Roy Neighbors, the prime sponsor of the bill, provided testimony regarding A.B. 530. Mr. Neighbors' verbatim testimony is attached as Exhibit D. Mr. Neighbors emphasized that this bill has the additional value of not being mandatory. Rather, it is permissive language, and authorizes the county having these problems to increase their compensation schedules, while allowing others to retain their existing payments.
Senator Smith referred to the per diem allowed, which is customary for state employees and officers. He asked why the mileage customarily allowed was not retained, rather than to say it will be the legal allowance at that point in time.
Mr. Neighbors agreed this is a good point, stating this would be subject to change. He stated he would not have a problem with retaining the customarily allowed mileage amount.
Fred Welden, Chief Deputy Research Director, Legislative Counsel Bureau (LCB), provided testimony. He advised this provision was done in this way because a different section of law defines what the rate for travel is for state employees. Therefore, this language would reference that other section, rather than putting the number in again.
Senator Jacobsen asked if judges and officers of the court are guided by the same fees.
Assemblyman Neighbors stated in some cases, the state provides the judges with cars, and they receive regular state per diem rates.
Senator Jacobsen asked if this applies to the clerk of the court.
Assemblyman Neighbors replied he was not sure if this would apply to the court clerk.
Senator Jacobsen stated his belief that there should be some uniformity regarding all court personnel.
Senator James confirmed there were no further questions or testimony regarding A.B. 530.
SENATOR JACOBSEN MOVED TO DO PASS A.B. 530.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
The hearing was opened on Assembly Bill (A.B.) 244.
ASSEMBLY BILL 244: Makes identifying information concerning victim of sexual assault confidential. (BDR 15-11)
Assemblyman Christina R. (Chris) Giunchigliani, the prime sponsor of the bill, provided testimony. Ms. Giunchigliani advised A.B. 244 is a victim's rights bill. She stated she does believe in fostering openness and public availability of discussions, documents, and proceedings of public agencies. The First Amendment is a valuable tool for democracy and one which must be guarded. She stated it is necessary, therefore, that she clearly frame the issue of A.B. 244. She stated some will argue that the passage of this bill will be a foot in the door towards the weakening of the First Amendment. She advised this is clearly not the case. She stated her belief that reasonable people, debating an issue such as this, will understand that under these very limited circumstances, protection of an idea will still allow for the protection of a victim. She stated sexual assault is a chilling crime, which counts men as well as women, boys as well as girls, as victims. However, it is a crime in which the victim is often perceived differently than the victim of any other crime. She advised police reports demonstrate that victims of robbery, burglary and physical assault may not have been as careful to avoid being the subject of a crime as they should have been. Yet, society regards them, as it should, as victims. She advised the victim of a sexual assault, on the other hand, often faces an underlying thought in society that he or she may have somehow asked for the crime to happen. Sexual assault victims, no matter how innocent, are stigmatized by being part of the crime committed against them. She stated other witnesses will testify as to how being a victim of these crimes makes a person different from any other victim. They will tell of spouses and loved ones who regard the victim differently after a sexual assault. They will say that these victims are treated differently, and that treatment is as traumatic as the crime itself. The publication of a victim's name for neighbors, classmates, or coworkers to know compounds the difficulty for the victim and permanently changes his or her relationship with others. She stated the intent of A.B. 244 is that the idea of the victim's name being released prevents victims from coming forward. She advised the bill states that the press can and should cover the story, but there is no need to know the victim's name. She stated the people who are not present at the meeting are the victims. The reason for that is that if they feel their name or likeness will be published, that presents an additional stigmatism. Ms. Giunchigliani then reviewed each section of the bill. She advised that the intent of the bill is stated in section 2.
Senator Jacobsen asked if the law does not provide for an accused to face his or her accuser.
Ms. Giunchigliani agreed that this does exist. She advised A.B. 244 provides that the defendant receives all information. This is provided in subsection 2 of section 3 of the bill.
Senator Jacobsen asked if a person can accuse someone and then refuse to testify.
Ms. Giunchigliani advised some cases have been overturned constitutionally because they focussed on mass media. She advised that A.B. 244 states that if information is not public, it does not have public access. This is an attempt to qualify that issue without restricting the defendant's ability to handle the case. She stated defense attorneys present at the hearing of the bill in the Assembly Committee on Judiciary were comfortable with the current language.
Ms. Giunchigliani stated the bill does not prevent the case from going to court or having testimony provided by the victim.
Senator James commented regarding the intent being including in the bill. He stated that normally, if a fundamental right exists which is somehow impinged by the statute, it is necessary to show a compelling state interest in impinging on that right. He referred to the fifth recital on page 2 of the bill, which reads:
The public has no overriding need to know the individual identity of the victim of a sexual assault.
He advised this could be interpreted in two ways. His interpretation would be that the public does not need to have an overriding need for information, because freedom of information and freedom of the press is a fundamental right. However, if the state asserts a compelling state interest in sequestering the information, then the public needs to have an overriding concern. This section addresses the fact that there is a compelling state interest here. The overriding need to know, which would override that compelling state interest, does not exist.
Frank A. Barker, Lobbyist, Las Vegas Metropolitan Police Department (METRO), provided testimony in favor of A.B. 244. Mr. Barker stated METRO supports the intent of the bill to protect victims of these crimes. He advised METRO has a compelling interest in protecting these victims. If the victim can be taken through the process without causing the trauma, described in the first few pages of the bill, a much better case can be presented. He advised METRO did have some difficulty with the wording in section 4, page 2, beginning at line 45. However, Mr. Barker and Lieutenant James Nadeau, Washoe County discussed this with Assemblyman Giunchigliani and Lorne Malkiewich, Legislative Counsel, Legislative Counsel Bureau. Mr. Barker stated his belief that those concerns have been resolved. Those concerns had to do with the choosing of the pseudonym to be used in place of the victim's true name. This will be something like "Jane Doe," chosen by the investigative agency. He advised clarification is needed regarding changing previously made reports to reflect the pseudonym. He stated the discussion centered around having a trailer bill to clarify that matter.
Senator Jacobsen asked if both the accused and the accuser are read their rights at the scene of a crime.
Mr. Barker stated there is no reason to read the accuser his or her rights. He stated under certain circumstances, the accused would be read his or her rights.
Senator Jacobsen is concerned that one person could falsely accuse the other person of something.
Mr. Barker stated that type of thing would be determined later. If there came a point where the department was going to charge a person for a false police report, that would be a decision to advise of rights at another time.
Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby, testified in support of A.B. 244. She strongly urged the passage of the bill to protect the rights of victims of sexual assault.
Sam McMullen, Lobbyist, Nevada Broadcasters Association (NBA), provided testimony. He requested the committee review section 3, lines 10-44 of the bill. He stated the NBA has a concern which may need to be addressed regarding this section. He advised that, read literally, the section states that any court record relating to a sexual assault case or any of the other related documents is confidential just because it may include information which could lead to discerning the identity of the victim. Mr. McMullen stated his belief that it would be more appropriate to say the records are confidential only with respect to that portion which may include, for instance, a photograph, likeness, telephone number, or other fact or information which reveals the identity of the victim. He suggested only those portions need to be made confidential. This would make general information about the case available to reporters and news gatherers. He stated his belief that he could address this with Assemblyman Giunchigliani and also make her comfortable with it. He suggested language, beginning at line 18 on page 2, something along the lines of the following:
. . .concerning a sexual assault, are confidential only as to the portion which includes the photograph, likeness, name, address, . . .which may reveal the identity of the victim.
Mr. McMullen advised that this will allow the release of the information regarding the case in general, and adequately protect the identity of the victim. He advised if the victim chooses to use a pseudonym, the entire case could be released.
Senator James stated subsection 1 of section 3 would not apply at that point, because none of the documents redacted with the pseudonym would reveal the information. He asked for and received confirmation that Mr. McMullen would be comfortable with that.
Andrea L. Engleman, Lobbyist, Nevada Press Association, Inc., provided oral testimony. Ms. Engleman advised her testimony will be in two parts, as she is also representing herself. She stated Ms. Giunchigliani is wrong. Ms. Engleman stated she is a victim of sexual assault, and she will be testifying from that perspective. She advised that the press association is concerned regarding the compelling interest. She stated that at no time was testimony given that in Nevada someone had published the name or likeness of a victim of sexual assault, without the victim's consent. She advised that the association has had complaints from victims who have gone to large newspapers wanting their story told and their name in the paper, and the paper refused to publish it because it was the paper's policy. She stated the paper was worried about adverse effects from the public. The papers have customers whom they serve, care about the community in which they live, and what is good for the community is good for a newspaper. She referred to the top of page 2, subsection 4 of the bill. She stated this refers to recent public criminal trials that have focused attention on these issues, and dramatized the need for basic protections for the victims of sexual assault. She advised the only trial in which she is aware to which this could refer was a national trial broadcast out of Florida, over which the Nevada press had no control. She advised this simply has not been done in Nevada. She referred to a situation recently in which a Carson City dentist was accused of assault. She advised in that case, the victims all came to the press and wanted the facts brought out. When the case went to trial in justice court in Carson City, Ms. Engleman was called upon by the justice of the peace, who wanted to ban the press from the courtroom. The defense attorney had requested this. This was not the request of the victims or the prosecution. She stated she discussed the issue with the justice of the peace, who was not concerned about the Nevada press, but rather some reporters present from California, covering the trial for national publications. She advised the justice of the peace stated that he had never had a problem with the Nevada press in any way exploiting these victims. She stated the press association has received no complaints. She stated therefore, the press association has some problems with the compelling need cited in the bill, and whether or not rape victims should be treated in a different manner than other victims. Ms. Engleman advised she understands victims whose homes have been broken into and burglarized also feel they have been invaded in some way, and feel somewhat like a rape victim themselves. Their privacy has been upset and they are fearful of many of the same situations as are rape victims.
Ms. Engleman advised the press association is also a bit confused as to language in the bill saying the person can waive confidentiality. She asked if the person assumes a pseudonym and waives confidentiality by use of the pseudonym, is that still as legal as if the person had used his or her real name. She asked if that person could come back later and say the waiver was signed in the pseudonym and was not really that person. She stated the process as to how that would work is of concern to the press association. Also, she stated that under this statute, a rape victim is evidentially a rape victim of the rest of his or her life, even if the accused is found innocent at the trial. She stated the bill does not say that this person is no longer a rape victim.
Senator James agreed that this is the case. He stated he was not sure how that would be handled if the victim's name was to be kept confidential. He confirmed that, upon acquittal of the defendant, the victim's name would be released. He stated the problem is that in a criminal trial, guilt must be proven beyond a reasonable doubt. This does not necessarily mean the person was not raped, but possibly was not able to prove that the defendant committed the rape. He stated the same sort of intrusive concern still exists, which is the genesis of the bill.
Ms. Engleman stated the press's problem is balancing out the presumption of innocence against the rape victim's rights. She advised there are many rape victims in the press. According to the National Society of Newspaper Editors, women in journalism have a higher ratio of rape than do women in other fields. She stated this probably has to do with the situations in which women in journalism must participate. She stated the press struggles with the fact that the accused person can be named, but the person making the accusations can not be named. She stated the problem arises that if, in fact, it is a false accusation, someone has been hurt needlessly. She stated the press is trying to balance, within the industry, as to how to treat these things.
Senator James advised this is the case under many existing policies. He used the example of the William Kennedy Smith case, where the defendant was named but, until after the trial, the accuser was never named. He stated he did not know if the press association could present a compelling state interest to sequester information regarding the identity of the accused as well.
Ms. Engleman stated this is the problem. Some people will say in order to be fair to both sides, the press will be inhibited from naming either person.
Senator James stated his belief that constitutionally, this kind of compelling state interest in protecting the accused could not be found.
Ms. Engleman stated 10 years ago, she was sexually assaulted. She stated what naturally follows afterward is shock, and that she is living proof that victims of sexual assault do survive and go on to build their lives. She advised that, at the time of the assault, all she wanted to do was forget the incident and put it behind her. She did not file charges, on the recommendation of someone in law enforcement in Carson City. She advised that, within 3 days, people close to her knew what had happened and told others. She received phone calls from married women in Carson City who had also been sexually assaulted in previous years by the person who assaulted Ms. Engleman. These women begged Ms. Engleman to bring charges. She stated she then received a call from a friend who advised Ms. Engleman that another friend's 12 year-old child had been sexually assaulted by the same person who assaulted Ms. Engleman. This triggered Ms. Engleman to bring charges, which she did. She did this to attempt to help others so they would not have to go through what she did. Ms. Engleman stated that, due to politics in Carson City, the person who assaulted her was never brought up on charges. She advised, however, at no time did the press print any of this. She stated that all she received from the press was assurances that they had never published a victim's name, and they never would. However, Ms. Engleman was threatened by other people, stating that if she filed charges and followed through, the press would print her name and her picture. She advised, therefore, sometimes the vision of the press doing all of these things is not because the press has done it, but because it is a convenient way for someone to attempt to manipulate the system. Ms. Engleman stated she still does not believe in A.B. 244, even as a victim of sexual assault. Further, she does not believe that there is a compelling state interest.
Senator Jacobsen stated he could appreciate the wish for confidentiality. He asked what would happen if, at a later date, Acquired Immunodeficiency Syndrome (AIDS) became an issue. He asked if this would allow the confidentiality to be removed. He also referred to, for example, another assault. He stated his belief that eventually, the information possibly should not be kept confidential.
Mr. McMullen stated he really did not know how to answer the first question, regarding AIDS. He advised the second part of the question would be answered by an appropriate change regarding the case being available for review. At that point the name of the accused, and other things relating to multiple offenses is usually an accused-based issue, rather than a victim-based issue. He stated his opinion that in that event, those items of information would be available, and would be public knowledge.
Senator James stated his belief that Senator Jacobsen's concern is addressed by subsection 3 of section 3 of the bill. He stated that a situation under the three listed criteria allows the court to issue an order allowing disclosure of the name, so long as the court has made a determination that this would not be a risk of harm to the victim, and there is an opportunity to be heard before this occurs.
Senator Jacobsen stated he would want to be sure that the victim was protected, but would not want the perpetrator to go without any sanction.
Senator James advised nothing in the law would protect the disclosure of the perpetrator's names. He stated one of the arguments against A.B. 244 is that there should be some equity in that regard.
Mr. McMullen stated there is nothing in A.B. 244 which influences or affects the punishment or the process by which guilt or innocence or sentencing would be determined, with respect to the accused.
Senator James asked Ms. Giunchigliani to speak to the concern raised by Mr. McMullen regarding section 3, lines 18-20 of the bill. He stated this section deals with documents, and the operative language is:
. . .which include a photograph or other fact or information that reveals the identity of the victim. . .
He stated his belief that it is a reasonable idea that it should be just that part of the document which is confidential. Therefore, that portion could be redacted, and the remainder could be released to the press. He suggested an amendment be requested to say:
. . .information which reveals or could lead to the revelation of the identity. . .
Ms. Giunchigliani advised she would have no problem with an amendment of that nature.
Senator James confirmed there were no further questions from the committee, or testimony on A.B. 244. He stated the bill seemed to him a fairly tailored attempt to address the problem. He stated it really only seeks to sequester a single fact in all of the information brought out at a trial of this nature, that fact being the identity of the victim of the crime. He stated it seemed reasonable to him that this could be protected. He stated his belief that the examples given of other types of crimes do not rise to the level of personal intrusion on privacy which would occur in a crime of sexual assault. He stated this seems to be borne out by the fact that the press itself has recognized the need to create such a policy, where it does not have that type of policy with other types of crimes.
SENATOR SHAFFER MOVED AMEND AND DO PASS A.B. 244.
SENATOR JACOBSEN SECONDED THE MOTION.
Senator Jacobsen stated it seems sometimes that our justice system is becoming less than just. He stated his belief that all possible should be done to protect victims, and see that true justice is done.
Senator James stated hopefully A.B. 244 is addressed as an attempt to make going into the judicial system a little less intimidating for victims of these terrible crimes. He stated there had been compelling testimony on both sides of the issue. He referred to the scenario raised where someone used intimidation to discourage their testimony. He stated hopefully A.B. 244 will address that situation as well, because it applies not just to the press, but to anyone who would reveal the information sought to be kept confidential. He referred to Ms. Engleman's testimony, agreed it is not the press who is abusing this, and stated this bill would cover all such situations.
Senator James reviewed the motion on the floor.
THE MOTION CARRIED. (SENATORS ADLER AND TITUS WERE ABSENT FOR THE VOTE.)
* * * * *
There being no further business to come before the committee, the meeting was adjourned at 4:55 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
June 16, 1993
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