The Committee on Judiciary was called to order at 8:00 a.m., on Friday, February 12, 1999. Chairman Bernie Anderson presided in Room 4100 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:

Assemblywoman Barbara Buckley, Assembly District 8, Clark County

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

After the meeting was called to order, Mr. Anderson asked if he could discuss A.B. 77. It was not on the agenda, but he wanted to point out there was a star printed next to the bill. He requested Ms. Lang explain to the committee what it meant. She said a new version of the bill had been created because a technical correction had been required. Mr. Anderson stated the only reason he brought it to the attention of the committee was because it was a bill scheduled for hearing in the next week, and he wanted to make sure the committee read the correct copy.

Assemblywoman Barbara Buckley, representing District 8 in Las Vegas, presented A.B. 51. She referred to A.C.R. 32 of the 69^th session and introduced Brad Wilkinson, Principal Deputy, Legislative Counsel Bureau who staffed the A.C.R. 32 interim committee, as well as fielded hundreds of phone call from litigants within the system.

Ms. Buckley proceeded with an overview of the bill. She explained A.B. 51 was one of the bills being recommended by the A.C.R. 32 interim committee. The bill dealt with accountability, precisely how long it took for cases to be processed, and caseloads for family division judges in Clark County.

Ms. Buckley explained Nevada Revised Statutes (NRS) 3.025 provided a reporting mechanism for the judicial system. It revealed the types of cases pending, undecided, or to which judge they had been assigned. It included the type and number of cases each judge considered during the preceding month and the number of cases submitted to the judge. It also gave the number of cases decided by each judge, and the number of full judicial days in which a judge appeared in court or in chambers in performance of their duties

Ms. Buckley pointed out currently information was supposed to be provided to the Nevada Supreme Court for their record keeping. It was her understanding it was not being done. She stated A.B. 51 recommended the legislature be provided a copy of those reports, so they would be able to ascertain when problems might develop as they had in the last 2 years. Legislators would have the statistics and information available to them so they could perform their jobs more effectively.

Ms. Buckley concluded her presentation of A.B. 51 by stating she understood the Administrative Office of the Court (AOC) had a proposed amendment dealing with a new tracking system for statistics. She commended them for it and thanked Karen Kavanau, Director of AOC, for implementing the new system. As Chairman of the interim committee, she felt it was important to obtain that information. If it went to the AOC and then to the legislature, it would be fine with her as long as they received the information for their review to ascertain the level of service the public received.

Assemblyman Carpenter asked if they were going to discuss the amendment being presented later in the meeting, or what was the procedure.

Chairman Anderson responded they were going to take the committee through the bill as it was currently written, and then have the AOC come forward separately with their amendment.

Ms. Buckley added she would like the amendment presented also, because she had not had a chance to review it, and she had questions. She felt it was not necessary to go through the bill section by section, and explained section 6 was the "meat of the bill" and the section she was addressing.

Mr. Carpenter stated, as the bill was presently written, it provided for a report every month and the amendment was for a yearly report, and he wanted input from Ms. Buckley.

Karen Kavanau opened her testimony by reading from a prepared script (Exhibit C). She stated she provided two documents for the committee. The first one (Exhibit D) was a copy of the AOC’s suggested language and the second one (Exhibit E) was a draft copy of the just completed Nevada Courts Statistical Reporting Model.

Ms. Kavanau appreciated Ms. Buckley’s recognition of the efforts she personally had made, but she wanted to recognize Ron Titus from her office because it was his doing. She wanted it known he deserved the recognition and appreciation for his work on the statistical reporting model.

Ms. Kavanau continued with her testimony by reading from her script (Exhibit C) and providing an overview of the reporting model (Exhibit E). She concluded by giving a recommendation to replace lines 28 through 41 on page 2 and lines 1 through 4 on page 3 of the bill with the language provided to the committee today (Exhibit D).

Ms. Kavanau addressed Mr. Carpenter and assured him the AOC would provide the information to his staff on a monthly basis, if that would make it easier for him.

For clarification Chairman Anderson asked Ms. Kavanau if the committee was to address the amendment further to alleviate some of the concerns and would the courts find it objectionable to be directed by statute to submit the information on a monthly basis.

Ms. Kavanau responded the Nevada Supreme Court would require the courts to report on a monthly basis by court order. If the committee wanted the information as the AOC received it, AOC would provide it.

Chairman Anderson referred to subsection 3 of the amended language (Exhibit D) to point out why the legislature would like to receive information on a regular basis.

Ms. Buckley asked for a brief summary of what would be provided to the committee under the statistical reporting model in contrast to what was previously in the statute.

Ms. Kavanau invited the members to turn to page 1.1, second paragraph of Exhibit E. She proceeded by reading, "the model was divided into three sections: civil, criminal, and family/juvenile". They would provide separate statistics in those three areas. She went on to read from page 1.1, describing the four types of information that would be provided. Ms. Kavanau interjected the biggest distinction between the type of statistics found in the model and what was in the current language was the AOC would not collect information on individual judges. That would be done at the local level. They would receive information district by district, which was a summation of what they collected judge by judge, at the district level. She believed the chief judge would have information at the local level similar to the information found in the existing language, but the AOC would not collect it on a statewide level in the first phase. It would be done that way because they felt the first phase needed to represent measurements that addressed the statewide court system first, district by district.

Ms. Buckley suggested it might be an issue to refer to a work session so the committee would have the opportunity to review the statistical model (Exhibit E). She pointed out it kept statistics on the number of hours judges worked and how long cases were pending, which gave very interesting information not be captured on an individual basis and might not translate to the statistical model. Ms. Buckley remarked the committee was not receiving the information and the model was a way to capture data and report it to the committee for review. She objected to developing a different model, which would be time consuming and add more hurdles.

Chairman Anderson commented that was a good observation. The committee received nothing now, even though they had been asking questions for years. He praised the AOC for the work they had done in the last 18 months and stated the court was trying to get them the information and recognized there a legitimate need. He agreed with Ms. Buckley to bring A.B. 51 back to the committee for review.

Assemblywoman Ohrenschall also agreed to bring the bill back so she could digest what it contained.

Chairman Anderson wanted it noted Exhibit E was a draft copy and much of the process of the document was not recognized as giving duties and responsibilities to the court and the separation of powers. He wanted to leave the court their dignity and the ability to set their own administrative documents as they saw fit, but the committee wanted to make sure it had the resources to do the job.

Chairman Anderson closed the hearing on A.B. 51 and brought it back to committee. He directed the staff to prepare a work session document so the committee could take up proposed amendments to A.B. 51 as so presented.

Ms. Buckley introduced A.B. 52 and proceeded with a background on the bill. She stated the issue came up late in the A.C.R. 32 study. It originated with Senator Maurice Washington, who was concerned individuals submitted false affidavits, thereby losing visitation, and there were no significant penalties. She stressed it affected makeup visitation. As an example, when someone was deprived of a month of visitation with their child, there was no mechanism to make up that time, so the penalties needed to be clearly spelled out. She reiterated the bill was the vehicle to address the issue.

She felt there were flaws in the drafting of A.B. 52. She did not think it captured the subcommittee’s intent. She pointed out there were concerns about a system where domestic violence victims were discouraged from seeking a protective order. She contended there was some concern from the interim committee if someone truly abused the process, thereby losing visitation, there had to be a mechanism to make sure that kind of behavior was not tolerated and makeup visitations would be allowed.

Ms. Buckley said the bill needed some work. She referred to section one where it stated the behavior being prescribed was a statement of material fact that was false or intentionally misleading. Ms. Buckley expressed they wanted to be very careful as they listened to testimony to make sure they were targeting the people who absolutely did not tell the truth, and there was not a statement of material fact that was misleading.

Ms. Buckley concluded her background of A.B. 52. She reiterated the concerns of those in the domestic violence community, such as Sue Meuschke, Nevada Network Against Domestic Violence and Ms. Ohrenschall, who served on the domestic violence panel for several years. She repeated she wanted the bill studied very carefully because she did not think it was drafted the way the subcommittee wanted.

Before he started his testimony, Brad Wilkinson, Principal Deputy, Legislative Counsel Bureau, (LCB) informed the committee since he was a member of LCB, he was prohibited from advocating passage or failure of the measure or otherwise take any position on the measure. He called attention to section one of A.B. 52 and read from subsection 2, (a) and (b), which contained language regarding a preponderance of evidence that no act of domestic violence had occurred or no threat of domestic violence existed. It also addressed an applicant who filed a false or misleading statement, and whether the court made the findings set forth in subsection 2. It detailed the options the court had including assessment against the applicant with all costs incurred by the adverse party. If custody was an issue, the court could transmit those findings to a court that had jurisdiction over those custody issues. It also gave detail regarding when a visitation was missed as a result of a false statement of material fact, a makeup visitation would be ordered by the court.

Mr. Wilkinson said other provisions in the bill stated when it was found a false statement had been made, it would be transmitted to law enforcement. Another provision contained in the bill was the court could prevent an adverse party who alleged a false statement had been made from continuing to raise the same issues regarding falsity, if it had been presented at an earlier time. He wanted it noted there was nothing in the bill that affected any criminal or civil sanction that could otherwise be sought, for example a prosecution for perjury.

Ms. Ohrenschall questioned why were there two different standards between preponderance and clear and convincing.

Mr. Wilkinson thought it was a drafting matter and those were two separate issues. He did not know if it would be appropriate to change those, but that would be a policy decision. Ms. Buckley added clarification by stating in the subcommittee they used "clear and convincing", and not "preponderance".

Assemblywoman Leslie asked if there was anything in the statutes that would prohibit the judge from ordering makeup visitations. She declared she did not understand why "all of this was necessary."

Mr. Wilkinson responded he did not think the court would be prohibited under any statute. He thought if the court believed a false statement had been made and it was proven, the court could prohibit it under regular powers.

Ms. Ohrenschall questioned under those circumstances was the bill really necessary since judicial discretion would cover it.

Ms. Buckley responded it was a policy question for the committee to decide. She noted the subcommittee’s concern was in the Temporary Protective Order (TPO) statutes that states the only mechanism was a misdemeanor which was never used, but they wanted to make sure a person was not purposefully lying to get additional visitation. She stressed you had to balance it against the true victims of domestic violence, whose rights the committee did not want to violate. It could be the balance was not served by proceeding. Ms. Buckley pointed out the interim committee thought it was an important enough issue for the full committee to debate.

Mr. Carpenter remarked he knew there were situations where orders were given and probably should not have been, but he questioned the court did not say they "may" do those things, it said the court "shall" do them. He also used another example where the bill stated "a preponderance of evidence that no active domestic violence has occurred" could probably be found, but when it says "no threat of domestic violence exists", he thought "only the Lord knows that, and he is not going to talk." He said it would be a very delicate situation to balance because of the language in the bill.

Ms. Buckley agreed with Mr. Carpenter, stating the discretion of the judges could not be taken away in those type of cases because they were in the best position to judge credibility. She also noted the situation where there truly was a fight, but someone decided it did not rise to the level of domestic violence. How would it be handled if the person in good faith, made a complaint and felt their safety and the safety of their children was at risk, but did not want to jeopardize their rights in the proceeding by putting a penalty against them.

In referring to section 5, lines 7 and 8 of the bill, Mr. Carpenter continued to express his concern about the language of the bill. He stated he was troubled by the words "similar evidence to the court or had the opportunity to present such evidence to the court, but failed to do so."

Ms. Buckley agreed with Mr. Carpenter’s concerns and stated she had not listed all of her concerns. She mentioned one "automatic transmittal to law enforcement," which she pointed out was not a criminal matter.

Valerie J. Cooney, an attorney specializing in domestic relations, and past president of the Nevada Trial Lawyers Association testified in support of A.B. 52. She mentioned she had lobbied before the Committee on Judiciary for the past five or six sessions. She started her testimony by expressing her opinion there was a problem that was not being addressed. Ms. Cooney stressed she did not want to see the discussion end or the bill tabled, therefore she signed in supporting the bill. She acknowledged the fact that abuses existed and she referenced abuses she had experienced in her own practice of law.

Ms. Cooney informed the committee she had been contacted by individuals within her organization, the family law section of the state bar, and other members of the legislature to address the problem of abuse of the system. She asserted she was not a person who disbelieved domestic violence was a very real problem. However, she felt the system was grossly abused by some and those abuses needed to be addressed.

Ms. Cooney called attention to the questions that had been asked and referenced Ms. Leslie’s question regarding whether there was other authority in statutes which allowed a judge to address those problems. She stated if a person searched they could find one that applied, but the reality was the justice court judges who considered those matters were concerned about protecting a claimant and erred in favor of the claimant. She said she knew attorneys in the practice of family law used that as a tool to gain advantage in a divorce. She used as an example a wife filing in justice court or in district court to obtain a TPO which immediately gave her custody of the children. She pointed out she had clients who told her they did not want to fight for custody because it would not look good if they went into court, and since there was a court order they agreed to stay away. Ms. Cooney declared there were significant consequences from the entry of a TPO. She related to the committee a TPO was immediately transmitted to law enforcement authorities and they had absolute power and authority to enforce those provisions. She stressed the fact an entry of a TPO could take place upon the written statement of one individual. She conceded there could be procedures in place in some of the larger judicial communities, but she did not see a lot happening in her district, which was Carson City.

Ms. Cooney called attention to the groups present who were there on behalf of women of domestic violence. She ventured to say there was not a single representative present from a male group. She conceded spousal abuse was largely committed by men so male groups were not represented and that troubled her.

Ms. Cooney remarked she had four specific cases regarding abuse against men, but she expounded on the case of a 62 year-old male client who was a retired United States Air Force pilot. His wife had him arrested and jailed three times simply on her written word. The first time he was jailed for 12 hours even though he did not have a criminal record and there was never substantiated evidence of abuse. At one point she claimed he called her, when in fact she had called him, and then had him arrested again and jailed for another 12 hours. It also happened a third time, and on each occasion Ms. Cooney went to court to try to clarify to the court the system was being abused and the woman was in fact lying. The wife pursued the matter with the District Attorneys Office and the man was prosecuted. He hired a lawyer and paid the lawyer $10,000 to find out the film she allegedly had of bruises had been "dummied up" by her. Ms. Cooney stressed her client was now fighting for the ability to see his child let alone have a meaningful relationship with the child, due to the problems with his wife.

Ms. Cooney pointed out there were problems with the language of the bill and referred to chapter 33, section 1, subsection 1, which allowed the adverse party to produce evidence or offer proof it was a lie or misstatement. Referring to section 2 regarding dual standards, she felt it was very problematic and it should be a heightened standard of clear and convincing evidence and the evidence of falsity must be a falsity directly relative to domestic violence. Ms. Cooney expressed her concern about the part of the bill that required the applicant to pay costs. She felt it important if there was a finding by the court there had been a material misrepresentation of fact on the issue of abuse, the finding needed to be transmitted to all individuals and agencies that received the original TPO. She read the bill as it referred to extended orders and thought it needed to read there be a TPO in existence for 10 days, then a time period in which it could be extended.

Chairman Anderson said he wanted to confer with his research staff in regard to temporary protective orders in terms of their application, and announced A.B. 52 would be taken up in a work session. He asked Ms. Cooney to provide the committee with suggestions on how to clear up any ambiguities of the bill and any other information she would like to provide. He projected the work session would take place in about 3 weeks.

Chairman Anderson invited testimony from individuals opposed to A.B. 52.

Sue Meuschke, Executive Director, Nevada Network Against Domestic Violence, explained her organization was a statewide coalition of domestic violence programs in Nevada. Ms. Meuschke read a letter she had sent to Chairman Anderson (Exhibit F) and referred to a letter she had sent to Attorney General Frankie Sue Del Papa (Exhibit G). Referring to the letters, she stated the information in both letters was basically the same, which dealt with the concerns domestic violence programs in the state had about A.B. 52. She called attention to the fact no domestic violence program in the state condoned anyone’s attempt to manipulate the system through false or misleading statements on protective order applications.

Ms. Meuschke said their opposition arose out of three issues. The first issue was the chilling affect the piece of legislation would have on all applicants. She pointed out the first thing to occur when someone applied for a TPO would be the court clerk would tell them in addition to any other sanctions, there would be more sanctions levied against the person if a false statement was made. She stressed many victims of domestic violence were told by the abuser nobody would believe them and then they were given the same message from the court clerk. She indicated it may discourage applicants from filing, not because they planned on not telling the truth but because they thought nobody would believe them.

Ms. Meuschke moved on to the second issue requiring an applicant to retain an attorney for the hearing. Because of the wide range of sanctions that could be levied on the applicant, they would be foolish not to hire an attorney. She stressed if a person was in crisis and dealing with a wide range of issues, having to hire an attorney would be another issue with which the person would have to deal. She stated in the letter "the ability to hire an attorney will restrict access to protective orders to only those victims able to afford legal services."

Ms. Meuschke informed the committee the third issue might be the most important. It would set up special sanctions for protective order applicants and she felt it would reinforce the message the applicant would not be believed.

Ms. Meuschke concluded her testimony by stating she knew there were concerns other people would voice and those were the concerns the domestic violence community had identified. She reiterated she understood there were problems and agreed with there might be other ways to deal with the issues rather than the piece of legislation being discussed.

Assemblywoman Buckley asked Ms. Meuschke if she had any suggestions on how to find the small percentage of individuals who were violating and falsifying affidavits without penalizing the people who were not abusing the system. Ms. Meuschke felt it was a judicial issue if someone was not telling the truth in court, it should be taken very seriously and those individuals should be sanctioned. In reference to earlier testimony regarding attorneys who directed their clients to give false testimony, there should be sanctions against attorneys also.

Chairman Anderson commented on extended abuse and protective orders and the lack of opportunity for some victims to have a day in court. He agreed there was a chilling effect of the dollar cost, but pointed out the more dramatic effect was if the system was made overly burdensome for the person who should get a protective order and hesitated to do so, it could cost a life. He also referred to Ms. Cooney’s statement regarding men who had been wrongfully accused and felt they had no recourse. He stated he did not want to see the pendulum swing in the opposite direction, but he thought there should be some common ground. He asked Ms. Meuschke if she felt there was a common ground to be found that would strengthen the statute as it was written, so there was a place for people who had been wronged by the system.

Ms. Meuschke responded she was not sure she had the answers. She noted obviously every system needed improvement and people abused every system that existed. The system had been set up to provide an opportunity for anyone who felt they had been wronged to have a chance to be heard in court. If the system was unable to cope with the numbers of people who went through the system, she did not think a piece of legislation that created more sanctions would solve the problem. If the respondents felt they were not allowed to go to court in a timely manner, it had to do with caseloads, and the judicial process, not with the creation of sanctions. She felt the piece of legislation would add more caseload and less access to the system for everybody. Accessibility to the system was what needed to be examined and how the system could be helped in coping with issues that were huge and hearing cases in a timely manner. She did not think a piece of legislation like A.B. 52 would do that.

Assemblywoman McClain commented it was a chilling effect on women who were intimidated by their abuser. She saw a real problem where the abuser would state he would not do it again, until the next time, and would tell the victim to say she lied about the abuse. She asked Ms. Meuschke how she felt about that scenario.

Ms. Meuschke replied A.B. 52 could be another tool for the batterer to use to control their victim. She thought the bill would expand the control and power over the victim and it would be sanctioned by the judicial system. She noted one thing protection orders had done since 1985 when the legislature created them, was provide an individual with the feeling they had access to the judicial system and they would be believed. She felt an opposite message was being sent with the legislation.

The Honorable Barbara McCarthy, Court Master, Family Division of the Second Judicial District Court testified next in opposition to A.B. 52. She presented the committee with a letter (Exhibit H) that expressed the opinion of the court. She noted it was the same message they had been hearing, which was the great concern the court had for the chilling effect the implementation of A.B. 52 would have when women walked through the door. She referred to Ms. Buckley’s statement about the origin of the bill coming from Senator Washington, so she felt competent to respond to the concerns of the constituents of the Senator regarding the loss of visitation and the specific issue that brought the bill forward.

Judge McCarthy stressed abuse existed in the system and it was human nature and human relationships they were asked to review to determine whether or not a protection order should be issued. As a domestic violence master that was what she did every day and the process in place was one she took very seriously. She was very cognizant of what effect a TPO could have on individuals and families.

Judge McCarthy continued her testimony by relating how the system worked in Washoe County. She noted there was an advocate’s office located in the family court building where applicants were interviewed and received their first impression of the application. Next, the applicant would be interviewed by a court master where credibility was reviewed, and a determination made whether a domestic violence act existed. If something did not seem right they started asking questions at that point. If something was not believable or not quite right with the application, it showed through. As a master she could talk with the advocate who worked with the applicant and with the applicant. That was the front line checks and balances involved with those cases. Judge McCarthy noted when she received the application to review, every file that existed was brought to her. If there was a divorce case where visitation was set out, she reviewed it. If there was a paternity action with visitation set out, she reviewed it. Juvenile cases involving minor children, was another example. She stressed any case in Washoe County involving any of the parties in the application was brought to her court. She wanted to assure the committee if there was a divorce or paternity action where a prior order of visitation was involved, the order was never set aside unless there was a clear issue of abuse involving the children.

The court policy was judges could not supercede the visitation order unless they went directly to the judge who ordered it. Judge McCarthy explained when a protection order was issued the applicant could receive protection against violence and the children were protected. She reiterated visitation was never modified unless there was a clear issue involving the safety of the child. That only came to light through social services or law enforcement, and it was always verified. For those applicants who came forward and stated they did not want a person to have any contact with the children and there was no order, they discussed why the request was made. If it was not a safety issue regarding the children, they ordered visitation in the TPO. It could be set up through Court Appointed Special Advocate (CASA), supervised visitations, or a third party. At that point in time, the applicant’s needs were examined and they tried to fashion the order so the other party remained in contact with the children. Judge McCarthy testified if the parties involved could not come to an agreement about the visitation, she would set the TPO for hearing. The hearing was held within 1 week so a discussion could be held to determine how visitation would continue. She assured the committee there were many safeguards involved in the system to make sure visitation orders were carried out.

Judge McCarthy addressed the committee on the issue of not telling the truth. She expressed she and her colleagues did not see it as a problem. She pointed out there was not a study in the country with which they were familiar that stated lying was a problem in the TPO system. She noted there had been studies to the contrary. She repeated she was aware it did occur and said there were red flags like when a custody case was being heard and somebody stated their lawyer sent them in. Those were red flags and they looked very closely at what brought the applicant in. She stressed judges were familiar with those red flags and it took them one step further in scrutinizing the application.

Pointing out another safeguard, Judge McCarthy informed the committee the TPOs in Washoe County were 30 days. For an extended order there had to be a hearing and it could be set 2 to 3 months out, but the respondent always had the ability to contest the order. If a respondent came forward and accused the applicant of not telling the truth, Washoe County gave that individual a hearing within 7 to 10 days to address it. She disclosed she had been asked to impose sanctions on an applicant. She referred to rule 11 that allowed a judge discretion to impose sanctions, and it gave them the tool to do so when on that rare occasion there had been abuse of the system. Another point she made was perjury was a crime and could be pursued, but the reality was they did pursue it because it was extremely difficult to prove. Judge McCarthy referred to A.B. 52 when she stated committing perjury was much like what was in the bill. It asked the court to find by clear and convincing evidence the applicant intentionally misled the court or should have known they were misleading the court.

Judge McCarthy concluded her testimony by observing the findings and facts the courts were being asked to make were comparable to perjury type elements and that was why the district attorney offices, city attorney offices, and most prosecuting agencies agreed it was impossible to prove.

Mr. Carpenter said he received a number of calls from constituents on both sides of the issue. As a representative of the people he felt he had a duty to listen to them, but if he wrote a letter to Judge McCarthy’s court and asked her to look into an issue about which the person was concerned and provide further detail, would she respond back to him. Judge McCarthy replied if it was not an active case, which she was not allowed to discuss, and he presented it her hypothetically she would respond.

The Honorable Cynthia Dianne Steel, District Judge, Eighth Judicial District Court testified she was asked by Clark County judges that dealt with the matters before the committee to prepare a statement. She opened her statement by noting she was a member of a legislative committee of judges comprised of Chairman Mark Gibbons, Chief Judge Lee Gates, Gene Porter, Jack Lehman and Don Mosley. She explained they were looking at A.B. 52 because it had equal protection and due process, which they liked, but it had very chilling language in it which they did not find appropriate. Judge Steel asked if her committee could be involved in the subcommittee and perhaps submit amendments to the bill.

Chairman Anderson assured Judge Steel the subcommittee would try to accommodate the Eighth Judicial District to allow them input on cleaning up the bill. He felt the bill was in serious danger, but he would like to see something saved from it.

Chairman Anderson asked Anne Cathcart from the Nevada Attorney General’s Office if she had submitted a letter to the committee, and she responded it was with the secretary (Exhibit I) and distributed to the committee.

Chairman Anderson closed the hearing on A.B. 52 and assigned a subcommittee comprised of Assemblyman Brower, Assemblywoman McClain, and Assemblywoman Leslie as the Chair. He directed the subcommittee to hear the bill in approximately 10 days.

Chairman Anderson opened the hearing on A.C.R. 4 and introduced Assemblywoman Buckley who was introducing the resolution.

Ms. Buckley gave an overview of the resolution stating it dealt with coordination and integration of cases which was an area of concern for families, especially in Clark County. She informed the committee the family court was founded on the principal "one family, one judge" which prevented inconsistency and judge shopping. It would allow a judge to learn a family and recognize issues that came up over and over again to give the family and the children some consistency. She stressed when parents were fighting it usually tore the child apart and that was the purpose and the vision of the creators of the family court. Unfortunately it did not happen like the interim committee thought it should. She explained it was because there were "ports of entry" to the family court such as child support action, paternity action, welfare action, or a divorce action. Those were different ways to get into the court. As an example, a parent who did not have a divorce order yet but was in the process, filed a case with the District Attorneys Child Support Division so an action became pending in family court. If the person was dissatisfied with the order it would be appealed to a judge, but sometimes the first thing a person said when he got to court was "I will pay child support, but I want visitation." At that point the master stated he or she did not have jurisdiction over visitation, only child support. Ms. Buckley noted the above scenario showed all the "ports of entry" using masters with different judges assigned to review their ruling, and when the family filed a divorce action, they might get a completely different judge.

Ms. Buckley concluded her presentation by reiterating A.C.R. 4 set forth the need for coordination and integration and the effect it had on families. It urged the court to coordinate and integrate cases involving the same parties or cases involving children when multiple parties and multiple agencies were involved, and submit a report to the Committee on Judiciary in the year 2001. She also requested suggestions for necessary legislation to further the goal.

Ms. McClain commented if everything was coordinated up front it would alleviate some of the problems addressed in the previous bill.

Chairman Anderson closed the hearing on A.C.R. 4 and entertained a motion.

Chairman Anderson assigned A.C.R. 4 to Assemblywoman Buckley.

Mr. Gustavson was not present when the vote was taken, but when he returned to the committee room he addressed the Chair that he voted in the affirmative.

Chairman Anderson opened the hearing on A.B. 154 and invited Assemblywoman Buckley, District 8, Clark County, to introduce the bill.

Ms. Buckley opened her presentation by explaining the bill contained two sections presented to her while she was Chair of the interim subcommittee on ACR 32 of the 69^th Session, but came to them after they had finished their work.

Starting with the first section, Ms. Buckley informed the committee it got back to "one family, one judge." She referred to her earlier testimony on A.C.R. 4 where she pointed out they were not even close to achieving that ideal yet. She thought A.B. 154 would push the courts to implement "one family, one judge" in some areas. The central point of the bill was section 9, while the rest of the sections were procedural to achieve the goal in section 9. She explained section 9 required when a family went before a family court and filed an action, it was assigned to a monitoring judge. She assumed it continued to be done randomly. What currently happened was if a person filed in a child support action and a family or a party to the action wished to appeal, it was assigned to the judge who reviewed child support orders. A paternity action and a divorce action were handled in the same manner, it was assigned to another judge. She pointed out it left a situation where multiple judges reviewed and made orders on one family without knowing what the other judges had done. She conceded it was done because of volume not desire. Because of the volume in Clark County and the inability to implement a case management system, it resulted in inconsistency and parties trying to abuse it by requesting another judge if they did not like the order given to them by their assigned judge. Other results were more attorneys fees for litigants and more instability and inconsistency on children.

She explained the procedural set up in earlier sections was based upon the initial pleading involving certain parties. They had to sign an information form which acknowledged if they were involved in any other cases, which was the mechanism LCB had created.

Ms. Buckley informed the committee she would like to offer an amendment which would add a third section to the bill very similar to the prior sections. She had a letter distributed from the Honorable Judge Gloria S. Sanchez, District Judge, Eighth Judicial District (Exhibit J). The letter stated Judge Steel suggested Judge Sanchez forward a letter (Exhibit K) Judge Steel had sent to the Attorney General’s Office requesting an opinion with respect to the procedures Family Court should utilize in hearing motions for contempt acts which occurred outside the courtroom.

Ms. Buckley asked the committee to note the information handed out addressed the same issue of "one family, one judge." She referred to NRS 22.030 which was a contempt statute that stated in all cases of contempt arising outside the presence of the court, meant one or two parties disobeyed a court order and the judge did not see it. It noted the trial on the contempt shall not be heard in front of the same judge whose order was being ignored. The purpose of the statute was to eliminate the chance of having a biased judge in a contempt action. It gave an individual the opportunity to request another judge if that person disobeyed the order and came before the same judge again.

Ms. Buckley said the problems arose when individuals used motions for order to show cause in contempt all of the time. She explained request for contempt orders and motions to show cause were routine in family law matters. They were not as routine in civil and criminal cases. Until recently the statute was ignored in the family law area and no one tried to seek to have a family law case removed to another court when a contempt motion was brought in. Ms. Buckley pointed out attorneys now recognized the statute and it was being abused. Some family lawyers were using the statute to create more inconsistency and to "get another bite of the apple." She referred to Judge Sanchez’s letter (Exhibit K) when she remarked the judge set forth the issues and concerns very well. Ms. Buckley suggested to the committee NRS 22.030, section 3, be amended to carve out an exception in family law cases and asked the Chair if they could look at the possibility in a future work session.

Ms. Buckley concluded her presentation by pointing out, the difference in policy considerations in family court versus other courts justified such a differentiated treatment. She stressed the havoc that could be caused by ignoring routine child support and visitation orders was so high it should be considered in the bill as an amendment and would further the first section of the bill, which was "one family, one judge."

Chairman Anderson asked Ms. Buckley if the committee accepted the proposed amendments of Judge Sanchez, would she be of the opinion the public would be better served with the reposting of the bill with the additional information. He asked the question because he felt it was a dramatic step to carve out a section of a bill, without truly informing the public.

Ms. Buckley responded she would be happy to repost the bill for additional hearings because she noted there would be another section of the bill she had not addressed yet, and it would also be very dramatic.

Mr. Carpenter observed Nevada had at least two judges in every district and he wondered if the situation where cases were being assigned to other judges existed in the smaller districts with only two judges. He suggested the research staff look at the situation in the districts other than the second and the eighth.

Chairman Anderson responded it was in part what the Administrative Office of the Courts (AOC) had already been asked to do relative to another piece of legislation. He felt the AOC may not have the statistical data relative to the duplication of court cases filed simultaneously in various courts, which was the issue being addressed.

Mr. Carpenter declared he would ask his district judges if they thought there was a problem, and Chairman Anderson indicated he would have the research division look into it also. He would ask legal to draft some proposed language as outlined by the presiding judge of the Eighth Judicial District to carve out a new section to the bill.

Ms. Buckley continued her presentation by calling attention to section 10 of A.B. 154, which dealt with offers of judgment in family law cases. She explained for those members who were not familiar with the offer of judgment system, it was a mechanism in the law whereby it allowed one party to offer another party a settlement of the action for a certain amount.

Ms. Buckley distributed a document to the committee, which was a Nevada Supreme Court decision of 1971 (Exhibit L) dealing with offers of judgement. Ms. Buckley read a portion of the decision that said offers of judgment should not be allowed in family law cases. She indicated the idea was brought to her at the conclusion of her subcommittee hearings and she wanted to give the committee the opportunity to consider it. She proceeded to describe portions of the decision by first pointing out a hypothetical situation where someone in a financial case wanted a divorce and the other individual did not and wanted to stop the litigation. A fifty-fifty split of money and assets was offered as a settlement to stop the litigation, but the one individual did not agree. Ms. Buckley observed there should be some penalty for not wanting to amicably resolve the case. She referred to the supreme court decision (Exhibit L) which stated family law cases were different because there were many things to consider like child support. Since then there had been a great deal of development like child support formulas and other case law that would render the decision an incorrect one from a policy point of view.

Ms. Buckley concluded her presentation by offering to introduce the issue as she presented it and asked for witnesses to come forward and perhaps with the additional posting they could hear more testimony regarding whether they should include the amendment or not.

Mr. Brower addressed one of his concerns for the bill was the award of attorneys fees. He read from section 10, subsection 4 that addressed the issue of attorneys fees by quoting "reasonable attorneys fees incurred by the opposing party in preparing for and conducting the litigation concerning the property rights of the parties." He noted it was one of the things the prevailing party may have available to them. He continued by referring to NRS 17.115 which was the standard civil offer of judgments statute, which stated the availability of attorneys fees was provided, but he believed the prevailing party could receive fees from the date of the offer. Some other jurisdictions allowed attorneys fees to be recovered at the commencement of the litigation. Mr. Brower pointed out A.B. 154 did not take either of those approaches and wondered if it was intentional on Ms. Buckley’s part or should the committee address the issue.

Ms. Buckley responded it was not a deliberate decision, she just asked legal to draft offers of judgment being applicable in family law matters. She noted they could listen to the testimony and debate and choose the one that made the most sense. It was her opinion it should be from the date of the offer because that was when one party was trying to end the litigation.

Chairman Anderson asked if there was anyone who wanted to speak in support or opposition to A.B. 154.

Judge Steel disclosed she did not make any collective representation and was neutral on the bill. She felt there may be some fiscal impact because some court mechanism needed to be put in place to track what was needed to realize a "one family, one court." She pointed out the statutes in place for family court were what she called relationship laws. She clarified the point by stating family court cases were never typical and no two parties were the same, so it made it very difficult to apply a "one size fits all" law, and yet the committee was being asked to make those laws.

Judge Steel testified when she ran for family court in 1992 and 1996 she believed it was "one family, one court" and that was what she was trying to accomplish. In 1992 the family court was set up and she felt it was not set up quite right. As an example, she pointed out there were different filing fees for different issues. When you paid a filing fee you received a different file case number for each issue being addressed and it was put in a different filing place in the clerk’s office. Judge Steel remarked she was told it was impracticable to have "one family, one judge."

Judge Steel observed there was an exception in A.B. 154 regarding juvenile cases. She remarked the juvenile judge in Clark County dealt with abuse and neglect cases. She explained if a case of abuse or neglect of a child was reported, the Child Protective Services (CPS) responded and after an investigation determined a hearing was warranted the case would be assigned to a judge to determine whether a child was being abused. She noted the same child could be the subject of a child support matter or child custody matter, so the child could have two judges because of the way the bill was written. She suggested the committee might want to add language to the bill that would give deference to the judge who was observing the abuse or neglect case so it would not be a case of one judge believing the father and another one believing the mother. It would lead to two sets of decisions being made at the same time.

Judge Steel mentioned she wanted to address the "may" versus "shall" issue. She noted it was very tough on a judge in a family law circumstance when the words "the judge shall" were used. She indicated there were many different layers of complication that could arise. She thanked the committee for the discretion given to family court judges when they had to determine what needed to be done for a family.

Judge Steel called attention to section 10 of A.B. 154 regarding offers of judgment. She commented she also had read the supreme court decision (Exhibit L) regarding how assets were separated and how many different ways there were to handle the many different assets involved. She observed if a person could look at the bottom line values, she thought child support and child custody cases should be decided first. She noted it was done that way in Las Vegas. They did not go to trial on the assets until after the matter of the children was determined. She commented if the committee was to permit that type of ruling after spousal and child support had been agreed to by the parties, she asked them to stipulate that the Sargent v. Sargent case had to be addressed also. Judge Steel explained the case involved a spouse who had no income and one who was the "bread winner," and they appeared in court. The spouse with no income was expected to pay attorneys fees. She noted they did not ask that spouse to have the attorneys fees removed from his or her half of the community property. She felt the judge should direct the spouse with the income to pay the attorney fees so the no income spouse would be on equal ground. She stressed the reasonableness of the offer of judgment should be studied in a work session or subcommittee.

In referring to the contempt rule discussed by Ms. Buckley, Judge Steel related it went directly to the case management of the judges and she felt it was wreaking havoc on the court system. She pointed out some attorneys who came before her last week had desired to do the rotation of cases and she had no mechanism to stop them. She also felt to have those cases rotated around would place a heavy burden on the court clerks.

Assemblyman Nolan had a procedural question regarding what the time frame was for a non-custodial parent to make a complaint of abuse of a child against the custodial parent, from the time of the complaint to the time it was investigated and determined if it was legitimate.

Judge Steel pointed out she had not served as juvenile judge, but her understanding was a complaint came into CPS and upon receiving the complaint they went through their procedural guidelines. Once an investigation had been lodged with the court system and been assigned a case number to be heard by one of the abuse masters, it would be heard by the abuse/neglect judge if it went to trial. She did not have a specific time frame because an investigation was held first or the case might involve two judges and two filings.

Ms. Valerie Cooney, Nevada Trail Lawyers Association, asked to respond to Mr. Carpenter’s query regarding what the rural areas did regarding district judges. In Carson City the judges who issued orders heard all contempt proceedings relative to those orders. She noted contempt proceedings were quite common in domestic cases, and if a contempt action were brought it would be heard by the court that issued the order. She conceded if there were only two judges, there was little ability to shop around for judges. She thought the exclusion, if it could be adopted properly, would avoid what may be a significant problem in Las Vegas.

Commenting on section 10 of A.B. 154, relative to offers of judgment, Ms. Cooney stated she had talked to individuals in her organization who were concerned about that type of procedure. They would like to see an early resolution in a case to avoid delays and increases in fees and costs. She also felt there were additional costs associated with the procedure that were not anticipated. She mentioned a judge hearing a case would be required to consider motions. Those motions would include determination of whether or not the findings and rulings of the court were or were not reasonable and consideration of attorneys fees and cost would be imposed. Ms. Cooney also felt there were problems with valuations and timing of valuations because in divorce cases the assets held were subject to increase or decrease over time, like real estate or investment and retirement accounts.

Ms. Ohrenschall requested information from Judge Steel regarding child abuse and neglect cases in regard to those cases not being handled by the judge handling the divorce but handled by the designated juvenile judge. She asked the judge to provide the committee with the number of cases that had not been handled in the manner being discussed. Judge Steel responded she was not aware of any statistics and she was not aware of it ever having occurred. Ms. Ohrenschall commented she had received several phone calls reporting it had occurred. Judge Steel replied to Ms. Ohrenschall she would make a request to the clerk’s office and see if she could obtain the information for her.

Chairman Anderson closed the hearing on A.B. 154 and brought it back to committee and indicated the intention to repost.

The meeting adjourned at 10:40 a.m.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: