The Committee on Judiciary was called to order at 8:05 a.m., on Wednesday, February 10, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblyman P. M. "Roy" Neighbors, Assembly District 36

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Erick Levin, Law Clerk, Fifth Judicial District Court

Deputy Chief Nile D. Carson, Jr., City of Reno Police Department

Larry McBee, Area Manager, External Affairs, Nevada Bell

Brian Doran, Deputy Director, Administrative Office of the Courts

Ben Graham, Legislative Representative, Nevada District Attorney’s Association

Martha Tittle, Legislative Representative, Clark County School District

David Gibson, Chief Deputy Public Defender, Legislative Representative, Clark County Public Defender

Chris Ferrari, Legislative Liaison, Governor’s Office

Stephen Driscoll, City of Sparks Municipal Court

Lt. Stan Olson, Government Liaison, Las Vegas Metro Police

Margaret McMillian, Director of Government Affairs, Sprint

Chairman Anderson called the meeting to order and proceeded with the roll call. There was a quorum present.

Assemblyman Neighbors testified the bill was requested by Judge John P. Davis, District Judge of the Fifth Judicial District (Esmeralda, Mineral, and Nye Counties), to provide a second district judge for the judicial district. Mr. Neighbors stated the additional judge was needed to deal with the significant increase in the caseload, particularly in the fast-growing Pahrump area of Nye County. He said the district judge’s salary was paid by the state. The staffing for the additional judge was a fiscal impact for which the county was responsible.

He said the bill had the support of the Nevada Judges Association and some of the members of the Nevada Supreme Court.

He indicated he would provide a letter from the county commissioners in support of the legislation and the fiscal impact that would be involved (Exhibit C).

Chairman Anderson asked if all the counties would be contributing to the fiscal impact or just Nye County. Nye County would be totally responsible and were building a new facility in Pahrump, Mr. Neighbors replied.

Chairman Anderson noted Nye County was the second largest county in the United States, thus with the addition of Esmeralda and Mineral comprised one of the largest if not the largest judicial geographic district in the United States.

Eric Levin, law clerk for John Davis addressed the committee and said the district was the largest judicial district in the State of Nevada. The significant travel time commuting from one courthouse to another reduced the amount of time they had in the court to deal with cases.

He reported between 1990 and 1997 criminal cases had risen 109 percent, civil caseload up 32 percent, probate cases up 8 percent and juvenile caseload up 48 percent. He said the majority of the increases were in the criminal caseload which was much more time consuming than the other type cases. He felt the caseloads would become heavier as the population increased.

Chairman Anderson asked Mr. Levin to provide written testimony for the record.

Assemblywoman Buckley asked if the Administrative Office of the Courts had a standardized formula for adding judges in the districts which factored in population as well as geographic distances. In Clark County in the family court they had one judge for every 149,000 people. They of course did not have the driving factor.

Mr. Levin said he did not know if they had a standard but knew they supported the additional judge. He said the fifth judicial district was the only district left in Nevada with one judge.

Chairman Anderson called upon Mr. Brian Doran, Administrative Office of the Courts to answer the question whether he was aware of a formula used by the courts to determine the number of judges necessary. He said the courts had not established a formula to determine district judges criteria for them.

Ms. Buckley asked what was the population of the district. Per Mr. Levin the populations were as follows:

Nye County 31,337

Mineral County 6,448

Esmeralda County 14,049

Assemblyman Collins brought up the request they addressed in the 1997 session from the Third Judicial District Court Churchill County. He wondered what type of criteria they used; was it caseload or distance?

Mr. Anderson said it was a caseload question rather than a distance question and they had asked for an additional courthouse. They were looking to move from one location to another. He felt distance was also a factor.

Assemblywoman Leslie questioned Mr. Levin regarding the fact juvenile cases had risen 48 percent. She wondered if most of those cases were coming out of the Pahrump area or were they spread across the three counties?

Mr. Levin said he felt the largest portion of juvenile cases came from Pahrump due to the large population.

Chairman Anderson said due to the dollar factor, the bill would have to be amended and referred to the Committee on Ways and Means.

The district went from 1,129 filings to 1,635 filings. He reiterated the majority of the increases were in the criminal caseload which was much more time consuming than the other type cases.

Assemblyman Carpenter said another factor they needed to realize was in a number of instances district judges were disqualified because of a conflict or certain parties to the action would ask they not hear the case. When they added a district judge they were not only helping in that particular area but if there was a district judge disqualified in Las Vegas, Elko, or Reno a district judge would then be available to hear the case. He felt in reality it helped the district but also helped the entire court system of the state.

Ms. Buckley requested a list of each district, the caseload and the number of cases per judge from the Administrative Office of the Courts. Mr. Williams would obtain those statistics for the committee.

Assemblyman Neighbors referred to (Exhibit D) the proposed amendment for A.B. 38

Chairman Anderson said he thought they had agreed on the fact there was only going to be the opportunity to acquire one additional location. Mr. Neighbors said he agreed with Mr. Anderson and was not sure why when the draft came out it said one or more. He did not know if someone else had a reason for that, but he had no problem with the language.

Mr. Anderson stated the concerns as previously noted were regarding records that needed to be kept for legal purposes at the county seat and the processing involved. They wanted consolidation of records and record keeping which could be an additional expense for the court to incur. It would be a great concern to them to have multiple locations in every small community in the state.

Mr. Carpenter felt he had a different recollection of the testimony on the constitutional amendment in the 1997 session. He thought they could establish one or more locations because within Elko County there were two primary locations. They just went to the location to hold court and did not need to keep records in that area. In Elko County, Jackpot and Wendover would be the communities that would certainly need a judge and they had facilities within those communities to hold court. He felt one or more was the most logical.

Mr. Neighbors said he just did not recall the discussion in the 1997 session.

Chairman Anderson said they would settle the matter by getting research to check into it.

Mr. Collins said he concurred with Mr. Carpenter’s statement. He felt they had discussed Mesquite and Laughlin in Clark County, but it was on a discussion level, he was not sure if it was acted upon.

Assemblywoman McClain thought the matter should be addressed as it was presented on the ballot. She felt if the ballot said additional locations then the public voted for more than one.

Mr. Anderson felt the research staff would include that as part of their examination of the question.

Ms. Angle questioned the jurisdictions of the court, Pahrump was only 60 miles from Las Vegas and was there a way for them to take pressure off of Nye County since that was closer than Tonopah.

Chairman Anderson said you could ask for a change of venue in a criminal matter if the community did not have the ability to pull a prospective jury that would not be mindful of the crime. A person was usually tried by a jury of their peers and based upon that concept they usually went to the district court in the sheriff’s jurisdiction.

"In closing Assemblyman Neighbors said he wanted to thank the committee for helping him get the question to the voters of the State of Nevada and they were very responsive."

Chairman Anderson said it was his intention to take the bill to the first work session to clarify the questions relative to the amendments on "one or more addition." If we were to proceed with the bill we would amend and rerefer to the Committee on Ways and Means.

Mr. Anderson brought up his concern regarding section 2 of the bill on the appointment of the judge by the governor and which would not be until after January 2001. He said the judge would then only serve until the year 2003. He wondered if perhaps the need of the court was for immediate relief.

Mr. Levin said it was just a matter of degree, "a sliding scale," the longer they waited the longer trials would be extended. "Certainly justice will be done in the fifth district no matter what you do."

Mr. Carpenter felt they should bring it up in work session after examining the numbers related to their caseloads. He also asked if the courts would supply information regarding judges hearing cases in other jurisdictions. He felt that would help the committee in deciding if there should be an appointment or an election, but he usually preferred an election. Mr. Anderson asked the Administrative Office of the Courts to provide the information to Don Williams, Committee Policy Analyst.

Chairman Anderson also asked Ms. Lang to look at the question in section 2 regarding length of term and manner of selecting judges and to possibly look for some suggested language in terms of the judge position following the next general election.

Chairman Anderson closed the hearing on A.B. 38.

Assemblyman John Carpenter, Assembly District 33 addressed the committee and said the bill was suggested by the President of the Nevada Bar Association, Mr. Andrew Puccinelli, a resident of Elko. He recommended misdemeanor crimes be classified as the legislature had classified felonies a number of years ago. He felt the classifications needed to be addressed. An interim study was suggested on A.B. 42.

Mr. Carpenter said there was concern there would have to be more jury trials and his intention was to simplify things. Chairman Anderson asked if he was suggesting it be rereferred to the Committee on Elections, Procedures and Ethics.

Ms. Lang said an amendment would be required to change it to an interim study.

Brian Doran, Deputy Director, Administrative Offices of the Court stated they were neither in favor of nor against the bill. The issue they had was jurisdictional. If the committee included a "Class A Misdemeanor" at the limited jurisdictional level that would increase it to a possibility of 1 year in jail and a fine of up to $1000 dollars.

Mr. Doran cited Brandon v. City of North Las Vegas. He stated the guiding case that set jurisdiction for the "limited jurisdiction" was a "Driving Under the Influence" (DUI) case before the Supreme Court. The U. S. Supreme Court concluded the Federal Constitution did not guarantee a right to a jury trial for a DUI offense because the maximum term for incarceration was only 6 months and the maximum fine was $1,000.

Mr. Doran directed the committee’s attention to Nevada Revised Statutes (NRS) 5.050 and NRS 4.370 the two jurisdictional statutes that set the criteria for the municipal and justice courts. "Within those two statutes it states all misdemeanors as it was presently written so "Class A Misdemeanor" would now move down to those two courts and would cause them to do jury trials because of the maximal cost of the penalty to go to a year."

Mr. Anderson asked if the concern of Administrative Office of the Court was the fact that if they were to proceed with the study as outlined in the bill with "Class A Misdemeanors" we would thus incur the question of a jury trial based upon the Supreme Court decision.

Mr. Doran said that was correct.

Ben Graham testified on behalf of the Nevada District Attorney’s Association. He stated he reviewed the bill with Assemblyman Carpenter, municipal courts, municipality representatives, and justice courts. He felt there was significant merit in what Assemblyman Carpenter was seeking and they fully endorsed the concept of a study and would participate fully to be able to come back with some good legislation that could garner majority support in 2001.

Deputy Chief of Police Niles Carson of the Reno Police Department testified he originally was against A.B. 42 but with Mr. Carpenter’s recommendation for an interim study he had become a "fence sitter." He said he would echo Mr. Graham’s endorsement of a study to take in all considerations. His concerns were more operational for the daily application of those laws and he felt with the study those concerns could be straightened out.

David Gibson, Clark County Public Defenders Office, representing Nevada’s Attorneys for Criminal Justice testified they felt an interim study was an excellent idea because of the benefits and costs involved.

Chairman Anderson brought A.B. 42 to the committee and said it was the intent of the Chair to entertain a motion to amend and rerefer to the Committee on Elections, Procedures and Ethics.

Chairman Anderson requested the opportunity to vote being left opened for Mr. Brower and stated Mr. Carpenter should be indicated in the affirmative even though he was not at his desk. Mr. Brower voted yes upon his return to the meeting.

Assemblyman John Carpenter, District 33, testified he requested the bill to address situations where pupils or other youths committed violent acts against persons on school property. He indicated the bill would move the offenders directly to adult status in district court rather than having them first go into the juvenile justice system. In addition, Mr. Carpenter pointed out the bill provided specific penalties for such crimes.

He referred to an amendment (Exhibit E) prepared by David S. Gibson, Chief Deputy Public Defender, Clark County Public Defender’s Office.

Mr. Carpenter referred to page 2 section 3 lines 38, 39, 40 of the original bill which said the state could charge first degree murder if any of those factors stated on line 40 could be proved. He said the way the bill was written if one of those acts were committed it would be murder in the first degree and he felt there were pros and cons. He clarified if one of the elements stated was committed, it would be murder in the first degree. He expressed uncertainty if the language remained, would it be a deterrent, could the prosecution actually move for first degree murder, or did they have to prove other elements.

Assemblyman Nolan stated he had the same concerns as Mr. Carpenter after reviewing the bill. Spontaneous versus malice was discussed and he wondered if the committee would really want to charge someone who acted spontaneously with first degree murder. He was not sure the statute if left the way it was written, would address those situations because the court would address each case based upon the individual merits.

Ms. Angle was concerned because 4 years ago in her area a girl was shot to death at McQueen High School. It was not an act of malice, the boy had thought the gun was not loaded. She felt as Mr. Nolan had that the issues needed to be addressed. It may not have been malice, but because the gun was present said something about the intent.

Assemblyman Brower felt the bill would both create an enhancement for a homicide on school property and create a short cut for first degree murder.

David Gibson testified the amendment (Exhibit E) was submitted in order to address Mr. Carpenter’s concerns. He proposed deleting the addition of the new first degree murder category because section 2 already defined it as a crime punishable by life with or without the possibility for parole, or for a certain number of years with parole eligibility after 20. He felt if you automatically made it murder, there would be a conflict.

Assemblyman Claborn asked if the bill would prevent plea bargaining.

Mr. Carpenter said it would not prevent plea bargaining because several penalties were attached. In most instances the plea bargaining could be a situation the prosecutor had at his disposal.

Assemblywoman Leslie asked Mr. Gibson if the bill superceded the procedures already in place by statute, certifying juveniles as adults.

David Gibson said addressed in section 5, subsection 2 (d) was a change Mr. Carpenter proposed in the original bill and what he had prepared as an amendment. The purpose was to make sure if the type of crime happened, the people responsible would not escape into the juvenile system rather than going to the adult system. Section 5 added another category of automatic certification.

Ms. Buckley proposed a scenario when someone fired a gun at a school bus stop, the time needed to form intent was approximately 2 seconds. "A 14-year old kid shoots a gun at a school bus stop kills one kid and hurts another, right now we can get the shooter for murder in the first degree can we not and substantial bodily harm to the second, if the child was of a certain age murder automatically gets certified up." She requested Mr. Gibson to explain what they were trying to accomplish that was not already in place.

Mr. Carpenter said the bill would automatically move that individual into the district court system rather than having to go through the usual preliminaries if they were under age.

Mr. Gibson responded said Ms. Buckley was absolutely correct. One of the instructions in a murder case was that premeditation could happen "as quickly as successive thoughts." In answering her question he said yes the person could be charged depending upon their age and what they had done. Based upon laws passed in the last 4 years juveniles could be automatically certified as an adult.

Mr. Brower clarified regarding Ms. Buckley’s scenario he felt based on the specific evidence the shooter could not be charged with first degree murder despite possible evidentiary problems with regards to intent.

Mr. Gibson stated the person would be automatically charged with open murder.

Mr. Brower said instead of using the term "charge" he should have said "instructions and possible conviction." He felt the bill would enable a jury to find first degree more easily based upon the instructions they received.

Mr. Gibson said he did not feel it would make it any easier. When preparing a criminal trial and there was evidence of intent or problems with their capacity or problems going on in their life, obviously the judge would allow you to give instruction on a lesser offense. He said they always got those instructions and he did not see any way legislatively to prohibit those from happening.

The Chairman said he wanted to allow Ms. Lang to respond in part from Legislative Counsel Bureau.

Ms. Lang said the bill did not specifically address the elements of the crime that needed proved it just said it was one type of crime that could be found to be murder in the first degree. She said if a crime was committed on the property of public or private school grounds one would still have to prove the underlying murder using the usual methods. If it happened to be on the school property, it would considered first degree murder.

Mr. Anderson said it would be enhanced.

Ms. Lang said the murder would still have to be proved.

Mr. Brower said if that was true, then did the bill help us at all in reaching a first degree conviction because it happened on school grounds.

Chairman Anderson asked Mr. Gibson if he felt the amended form would help the district attorney’s office cause a juvenile to come to court on a first degree charge and then for the enhanced penalty.

Mr. Gibson said he believed the tools were in place to prosecute those types of murders. He felt the bill organized the focus on certain events. He did not know if anybody could answer question if it would make it easier.

Chairman Anderson said it merely clarified the situation statutorily.

Ben Graham, Nevada District Attorney’s Association, concurred but said he had not had an opportunity to fully analyze the bill. He felt having the ability to bring juveniles into adult court would make it more specific but not any more honorarius on the juvenile.

Chairman Anderson brought the bill back to the committee.

Ms. Leslie asked the committee to keep in mind the bigger picture as they moved forward. She felt the fact that many of the children in Nevada did not have access to mental health care and if we were able to provide them access to such care, a lot of those tragedies could be prevented.

Mr. Anderson said he believed that was covered in another bill he had coming forward.

Chairman Anderson asked the committee’s legal counsel to review the proposed amendment and redraft it to reflect the appropriate bill drafting language. He asked that it be placed on the first work session document.

Assemblyman Tom Collins said he was approached regarding an issue of which he had been aware for many years. His background was in construction and mostly outside residential areas and power lines. He met with Detective Kim Thomas, and Detective Russell of the Retail Construction Theft Detail, Las Vegas Metropolitan Police Department, at the Las Vegas Electrical Contractors meeting room. Since then he had received a lot of support for the bill from all areas.

Basically what had happened in Las Vegas and other states was building materials both new and used were stolen from retail sales, wholesalers, construction job sites, utility lines, and public easements throughout the valley. He said, scrap dealers, recyclers and salvage yards received different types of metals; junk cars, aluminum cans, and copper. He told the committee they would be amazed if they could see the brand new plumbing and electrical supplies, copper and brass fittings that had been sold to the various dealers.

There were laws in other states and A.B. 55 included language similar to the bill the State of Arizona had adopted. Mr. Collins said if you burned metallic wire, primarily copper wire, it had to be done legally. It must be burned in an incinerator instead of being burned out in the "boondocks." There were many people involved in the request of the bill including environmentalists, law enforcement, utilities, manufacturers, and sales people because of the significant ramifications the problem had caused. The illegal burning of the toxic material not only caused contamination to the ground soil but also air pollution.

Current laws and ordinances in Clark County did not provide the authority needed to handle the situation. Most of the recyclers and salvage yards complied with the current laws. The bill would clarify and assist the district attorney’s office in prosecution and law enforcement in arresting those that did not comply.

Assemblywoman Koivisto said it looked like the only copper the bill dealt with was burned copper. She questioned if a person took their buck knife and stripped the metal was it okay. Mr. Collins said that was correct, it was handled by a local ordinance.

Chairman Anderson said in the current local statutes, at least in Clark County and Las Vegas, the question of scrap metal "copper" that had been cleaned had already been addressed, and therefore there was no problem. The problem involved the other type of copper wiring becoming a potential environmental hazard and lessened the value of the wire because of the process they had gone through in order to strip the material off.

Mr. Carpenter questioned section 1 regarding environmental concerns.

Mr. Collins said the bill dealt with both environmental as well as a large economic issue.

Lt. Stan Olson, Las Vegas Metropolitan Police Department and Nevada Sheriffs and Chiefs Association, said due to the significant increase in growth and the crimes which had occurred at various construction sites throughout southern Nevada they were forced to establish a construction crime unit. He said in the area of scrap metal they experienced losses upwards of a million dollars a year in the Las Vegas Metropolitan jurisdiction. That figure did not include what happened in Henderson or North Las Vegas.

He explained the thief would remove the wire from construction sites before it was installed or sometimes after the installation had occurred. Lt. Olson said the most recent incident involved a subdivision in Las Vegas. Fifteen homes under construction were stripped of all the electrical wire by the sheet rock installers. They had come in and cut the wires from behind the power boxes, pulled all the wires and then sheet rocked all 15 of the homes. "During the walk through the poor unsuspecting person who had purchased the house found they had no power." The theft not only delayed their move but also cost them additional money. The developer was responsible for ripping out all of the sheet rock and rewiring the homes.

He said it was the "new wave" that was happening. The problem not only involved copper wiring but also any type of wiring they could get they hands on and sell as scrap metal. They got a higher dollar amount when the wire had been burned of the coding or rubber jacketing that went around it. He explained there was a jacket around the wiring that identified the company who purchased the product enabling law enforcement agencies the opportunity to track back to where it was stolen and many times be able to tie the theft to one of the construction workers. There was also a significant impact on the Clark County Fire Department.

Mr. Carpenter questioned the environmental consideration of the burned wire and the offenders being apprehended. He felt they needed an expansion of the language in section 1 to take care of the environmental issue.

Mr. Anderson said it appeared that lines 4 and 7 addressed the question related to unwholesome substance and public health. He felt they covered Mr. Carpenter’s concerns.

Ms. Lang said Mr. Anderson was correct.

Mr. Collins said NRS 202.180 addressed the crime against health. The emphasis was placed on the crime of burning and selling the wire. He felt by strengthening the language on the crime being committed, the new police unit would be able to get more support from the district attorney’s office enabling them to prosecute both the "seller" as well as the "receiver" of the stolen material.

Assemblywoman McClain asked if they were looking at the environmental impact of burning metallic wire, why did they have to use the term stolen. What about a company going out of business who burned their wire.

Ben Graham said there were significant statues and ordinances covering health issues.

Mr. Anderson said Ms. McClain brought up an interesting question but a company who burned their wire had no criminal intent. They would have to identify themselves to create a record to the salvage yard.

Mr. Brower asked the fundamental question if the health and environmental concern was addressed elsewhere in the statute and it was currently against the law to steal the wire, and it was against the law to possess the stolen wire, and it was also against the law to sell the wire, what loophole, if any, was the bill intended to plug.

Lt. Olson said the loophole was when the thief had burned the wire and took it to the recycler or metal salvage operation and they accepted the wire. Many times they knew or thought it was stolen, but there was no way to prove it and they were in the business to make money. The Las Vegas Metropolitan Police Department wanted the paper trail to establish the identity of who had sold and brought the stolen goods. Once they received information it had been stolen they could check back and find out who brought in the goods and backtrack to the suspects to find out how they received the merchandise.

Larry McBee, Area Manager External Affairs Nevada Bell, said they were in support of A.B. 55. He stated Nevada Bell was in the business of "cable" and one of the things they did in the 13 counties throughout the state was to change the "cable out." As they changed over to fiber optic cable they reused the copper cable. Over the years they have had miles and miles of copper cable stolen. He said in many cases it was taken across borders into Utah and other states to be sold. He felt anything the committee could do to establish a paper trail would be greatly appreciated in being able to apprehend and prosecute the offenders.

Margaret A. McMillan, Director of Government Affairs for Sprint in Las Vegas, said she had not been aware of the bill until that morning and was unable to locate information as to the extent they had suffered from that type of loss. She did say Sprint no longer had open wire.
She felt it was a good bill and would offer support.

Chairman closed testimony of A.B. 55 and brought it back to committee.

The bill was assigned to Mr. Collins.

There being no further business the meeting adjourned at 10:10 a.m.

RESPECTFULLY SUBMITTED:

Novella Watson-Lee,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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