The Committee on Judiciary was called to order at 9:00 a.m., on Monday, February 22, 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

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

COMMITTEE MEMBERS ABSENT:

Ms. Sharron Angle (excused)

GUEST LEGISLATORS PRESENT:

Assemblywoman Barbara Cegavske, District 5, Las Vegas

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Lieutenant Stan Olson, Government Liaison, Las Vegas Metropolitan Police Department

Captain Jim Nadeau, Legislative Liaison, Washoe County Sheriffs Department

John Albrecht, Deputy Attorney General, Nevada Attorney General’s office

Charles Harrington, franchisee, Seven-Eleven

Joannie Hill, franchisee, Seven-Eleven

Peter Krueger, State Executive, Nevada Petroleum Marketers and Convenience Store Association,

John Morrow, Chief Deputy, Washoe County Public Defender’s Office

Chairman Anderson introduced a proposed amendment (Exhibit C) to Nevada Revised Statute (NRS) 463.245 which stated a single establishment could not contain more than one licensed gaming operation. The proposed amendment changed the language that dealt with monetary compensation involving profits or revenue from slot machines.

Assemblyman Collins questioned if the amendment only dealt with gaming licenses. Chairman Anderson responded the intent of the legislation was to deal solely with slot machines.

Chairman Anderson placed the question to the committee for approval to use one of their BDRs for the amendment to NRS 463.245. It passed unanimously.

Chairman Anderson informed the committee Assemblyman Gustavson requested a bill draft which would reserve to the state the right to bring certain civil actions against firearm or ammunition manufacturers. The bill draft was similar in nature to a law drafted in the State of Georgia and he noted Mr. Gustavson gave him a copy of the Georgia legislation (Exhibit D).

Chairman Anderson discussed a seventh drafting of a resolution which came from Speaker Dini to study the use of psychiatric panels in making recommendations to the parole board for sexual offenders. The outcome could be the possible elimination of the psychiatric panel and its operation.

• BDR 15-1113 – Makes various changes concerning complaints against peace officers. (A.B. 304)

• BDR 23-1235 – Provides for counting of certain service performed by certain injured employees towards eligibility for retirement as police officer or fireman. (A.B. 303)

Chairman Anderson called attention to A.B. 38 which was Assemblyman Neighbors’ bill, and explained the amendments had been delivered to him and he would deliver them to the floor without review. He also noted he had received the requested amendments to A.B. 80 which was Assemblyman Carpenter’s bill, revoking parole provisions, which Chairman Anderson would deliver to the floor as well.

Chairman Anderson distributed amendment number 40 (Exhibit E) to the committee which was an amendment to A.B. 20.

Ms. Lang explained A.B. 20 dealt with the retirement or removal of judges or justices. The committee was concerned if the action was pending an appeal or whether the Supreme Court had overturned the decision. She noted the language was amended in each section.

Chairman Anderson opened the hearing on A.B. 82

Carlos Brandenburg, Ph.D., Administrator, Department of Human Resources, Division of Mental Hygiene and Mental Retardation (MHMR), referred to NRS 178 explaining clients were committed to the administrator of MHMR as either incompetent to stand trial or for evaluation of competency to stand trial. The duties of the administrator of MHMR under NRS 178.450 stipulated clients committed to the administrator because of a misdemeanor had to be evaluated within a 3-month period, and those individuals sent on a gross misdemeanor or felony had to be evaluated within a 6 month period.

Dr. Brandenburg explained he was required to notify the district judge who appointed a three-member sanity commission to evaluate each client at Lake’s Crossing Center for the Mentally Disordered Offender. Those members evaluated whether the client was currently competent to stand trial or could obtain competency in the foreseeable future. NRS 178.465 provided that compensation for the sanity commission must be paid by MHMR. Currently the cost was incurred under Lake’s Crossing’s budget which was budget account 3645. The division was paying $260 per sanity commission member per evaluation. He testified the bill he presented allowed the administrator to fix a reasonable rate of compensation for members of the sanity commission. It was imperative the administrator have the ability to establish the compensation for members. He pointed out at times judges had not been uniform in fixing those fees, with charges ranging from $600 to $2000. The bill would allow the administrator to consult with judges and set a reasonable compensation rate.

Assemblywoman Leslie asked who made up the sanity commission. Dr. Brandenburg responded by statute they were psychiatrists or psychologists, and each judge had a group of individuals within the community who were also members of the commission. Ms. Leslie questioned who chose the commission, to which Dr. Brandenburg replied the judge chose the members.

Mr. Carpenter wanted to know if the compensation would be done in consultation with a judge. Dr. Brandenburg explained he dealt with all of the district judges in Nevada and would be meeting with them to establish the compensation rate.

Mr. Carpenter noted in the bill proposal the judge who impaneled the commission would sign the order for compensation and would that mean the judge agreed to the compensation being paid.

Dr. Brandenburg responded if the bill passed the judge would agree to the compensation MHMR set forth which was presently $260, and he did not see reducing that amount. He stressed he wanted to be involved in any change in that amount. He noted in the past judges had changed the compensation fees after the legislative session which did not allow Dr. Brandenburg to have the money in the budget and caused problems administering the budget.

Mr. Carpenter felt there could be a problem if the judge was asked to sign the order for compensation and the judge did not agree with the compensation being paid.

Dr. Brandenburg explained the judge would be part of the compensation negotiations, he just wanted it made clear he wanted to be part of the negotiations as well.

Chairman Anderson stated for clarification, the purpose of the bill was to include Dr. Brandenburg in all discussions related to compensation paid to the sanity commission.

Dr. Brandenburg testified the fees were currently being paid by the State of Nevada through budget account 3645; however, the compensation rate was not within the state’s purview. What the bill allowed was having the state involved in the compensation rate for any monies paid out of the budget.

Chairman Anderson commented the bill would not go to the Committee on Ways and Means because of the need for additional compensation or change in budget categories but because of closer accountability, since money was paid by the state, and the state should be involved in the discussion.

Mr. Carpenter thought the bill did not say what Dr. Brandenburg had talked about in his testimony. He quoted him as saying they would consult with the judges to set the fee, but the bill said the administrator would set the fee and the judges would sign it. He felt it should be clear the judge was to be consulted prior to the administrator setting the fee.

Chairman Anderson called attention to line 5 of A.B. 82, "preparing reports regarding the person designated by the judge in the order," and also noted lines 6 through 9, the administrator "shall fix a reasonable rate for compensation." He asked Dr. Brandenburg to clarify how the judge was included in the language.

Dr. Brandenburg responded Mr. Carpenter was correct there was no language in the bill that stated the administrator would consult with the judge and he volunteered to work with the bill drafters to amend the language to include the administrator would consult with the judge.

Chairman Anderson addressed Mr. Carpenter if the bill was amended at line 6 to start the phrase "after consulting with the presiding judge" the administrator shall fix reasonable rate, would that be sufficient for him. Mr. Carpenter agreed with the change.

Dr. Brandenburg pointed out he dealt with all of the judges in the State of Nevada and asked for language in the bill that would allow him work with the chief judges instead of the presiding judges. Chairman Anderson agreed to the change and called for a motion for amend and do pass.

Chairman Anderson closed the hearing on A.B. 82

Chairman Anderson assigned the bill to Assemblywoman McClain.

Chairman Anderson opened the hearing on A.B. 83.

Lieutenant Stan Olson, Government Liaison, Las Vegas Metropolitan Police Department testified their police department experienced a large increase in crimes using debit cards. He noted approximately 60 days after requesting the bill draft he became a victim of that type of crime for $900 out of his checking account. The current NRS did not cover debit cards and it was their desire to have them covered the same way credit cards were covered. He explained the difference between credit and debit cards and pointed out they both had a VISA or MasterCard symbol on them. He mentioned his money was returned by the bank, but because there were no laws regarding debit cards there was little the police could do about that type of crime.

Captain Jim Nadeau, Legislative Liaison, Washoe County Sheriffs Department, testified he was approached 18 months ago regarding the same problem. He was there to point out it was an increasing problem and his department supported the bill.

Ms. Buckley indicated the VISA or MasterCard symbol on the debit card was a real problem because if the card was stolen it could be used over and over at all night convenience stores because identification was not usually checked. She referred to an incident in which it had also happened to her.

Lt. Olson referred to page 3, line 24 of A.B. 83 and suggested an amendment that would add credit unions or other financial institutes. He reiterated there was no reference to credit unions.

Chairman Anderson asked Ms. Lang if line 24 included credit unions and she replied not specifically, but it could be added to the bill for clarification.

Chairman Anderson closed the hearing on A.B. 83.

Chairman Anderson assigned the bill to Mr. Gustavson.

Chairman Anderson opened the hearing on A.B. 85 which was requested by the attorney general of the State of Nevada.

John Albrecht, Deputy Attorney General, Nevada Attorney General’s office explained the Attorney General’s Office introduced A.B. 85 on behalf of the Seven-Eleven franchisees and introduced Chuck Harrington a Seven-Eleven Food Store franchisee.

Charles Harrington, franchisee, Seven-Eleven, read from a prepared script (Exhibit F), where he explained he represented the Southern Nevada Seven-Eleven Franchised Owner’s Association with approximately 200 stores in the State of Nevada. He was there in support of A.B. 85 because he had witnessed a dramatic increase in shoplifting thefts.

Joannie Hill, franchisee, Seven-Eleven, called attention to a picture she had distributed to the committee showing an overhead view of her store (Exhibit G). She continued her testimony reading from a prepared script (Exhibit H). She stressed the fact shoplifters had changed over the years and came from every walk of life and age group. She noted her store was the reason A.B. 85 was before the committee. Ms. Hill explained, about 1 year ago a shoplifter was in her store and had some burritos in his pocket. When the police confronted him he removed them from his pocket, but the police could not do anything because the man had not left the store. The way the law was currently written it was vague and needed clarification regarding a shoplifter exiting the store. She also stressed the danger of a clerk having to go outside the store to address a shoplifter. She referred to two other letters distributed to the committee (Exhibit I and Exhibit J) showing support for the bill.

Ms. Ohrenschall questioned Ms. Hill on the danger of chasing somebody out of the store. She asked what type of housing development was located near her store.

Ms. Hill responded there was a mobile home park adjacent to her property with the closest mobile home within 15 feet of her store and an apartment building within 20 feet on the other side of the store and most shoplifters ran and jumped the wall on either side.

Ms. Ohrenschall mentioned the mobile home park was a senior citizen park and wondered if there was concern for their safety. Ms. Hill responded there was a danger there and some of the seniors had seen cars parked in their park and tried to block the car to keep them in the park.

Chairman Anderson questioned if that type of crime was currently a category C misdemeanor or gross misdemeanor with a $500 or less fine and moving it to a category D would lead to imprisonment for a minimum of 1 year and a $5,000 fine.

Mr. Albrecht referred to section 5 of A.B. 85 stating it was currently a misdemeanor and even with the third offense it was still a misdemeanor.

Chairman Anderson hypothesized if he lifted a candy bar it was the first offense and subsequently lifted another candy bar for a second offense and then returned a third time and stole a burrito then he would be sent to prison for 1 year or $5,000 fine. Mr. Albrecht pointed out only if he was charged on the first two offenses.

Mr. Albrecht also noted there would be discretion in the district attorney’s office to even charge a subsequent offense as a first offense.

Ms. Buckley indicated she was in favor of changing the provision regarding hiding the stolen item and not leaving the store. She was concerned about changing the offense to a felony because she wondered if it would do any good. She thought the police may not see the crime as a high priority and an individual may not be prosecuted anyway. Ms. Buckley suggested a change in thinking with regard to community service or some way to reach the individuals who were continually victimizing the convenience stores, but her opinion regarding changing the crime to a felony would not stop the dangerous situations or the shoplifting.

Mr. Gustavson stated he agreed with increasing the penalties, but he questioned how a store employee would detain an alleged shoplifter in the store and would it be any different than detaining them outside the store.

Ms. Hill responded an employee could pick and choose whom they would detain. They would not try to detain a gang of young men or a very aggressive individual.

Ms. Ohrenschall wondered of a customer saw a crime happening and reported it to the store employee, should customer be added to page 3, line 3 of the bill which described what the term merchant meant. She felt if a customer saw the crime and reported it, the word of the customer was as good as the merchant or an employee of the merchant.

Mr. Albrecht pointed out it would be hearsay at a hearing if the merchant stated a customer reported the crime to him and he detained the individual.

Ms. Hill replied the merchant would need to observe the crime and keep in full contact with the individual with the stolen merchandise.

Assemblywoman Barbara Cegavske, District 5, Las Vegas, testified she was supporting A.B. 85. She informed the committee she was a Seven-Eleven franchise owner for 13 years. She pointed out it was an increasing problem and what could be done. She noted the jails were full and she understood why shoplifting was looked at as something that was not as important as other criminal activities. She recommended the one, two, three scenario and said the first time they were caught they would go to a court school, second offense would be community service and the third offense would be jail time.

Peter Krueger, State Executive, Nevada Petroleum Marketers and Convenience Store Association, testified his association supported the bill. He noted his association worked very hard to reduce youth access to tobacco and were working diligently on preventing the theft of tobacco by juveniles. He noted another concern of the association was the "drive aways" where somebody fueled their car and drove away without paying. He felt the law was ambiguous regarding crime in or out of the store. He reiterated for the safety of employees of all types of businesses it was not prudent or safe to pursue an individual involved in a theft of store property. Mr. Krueger suggested a way to reduce the cost of enforcing the proposed legislation was to support Ms. Cegavske’s recommendation regarding the one, two, three approach.

Chairman Anderson stated he reviewed the overall statute and compared category D and category E crimes and felt the bill was a more limiting area than category D. He thought category D was an extensive list of crimes including arson and forgery and felt the crimes being discussed were not ready to be raised to a category D level.

Mr. Krueger called attention to page 3, lines 20 through 24 regarding a merchant shall have reason to believe merchandise had been wrongfully taken by a person. He felt there was a direct economic cost to the public in the form of higher costs for merchandise. He also agreed raising it to a category D crime probably would not happen and reiterated his support of the one, two, three scenario. He thought all retailers supported some form of detention as a deterrent.

David Gibson, legislative representative, Clark County Public Defender’s Office opened his testimony by stating he was there with some statistics and not to address enforcement. He noted last year in the Clark County justice courts there were 3,977 petty larcenies through the system, not including citations. In the city of Henderson there were 700 complaints, also not including citations. In the Las Vegas Municipal Court there were 2,217 petty larcenies and those did not include Laughlin, out in the valley, or in Henderson. He proposed if the bill passed as written with the enhancement of the third time being a felony, it would put into place the same types of requirements involved in a DUI or in domestic violence. He explained in order to enhance the crime to a felony, once it was indicated a felony was going to be prosecuted on the third offense, counsel would have to be appointed for all individuals who could not afford counsel. It would increase the caseload of his department by about 7,000 cases which was about 25 percent of what they handled in one year. Mr. Gibson pointed out his office would need at least another one-half of an attorney per track and possibly one per track, which was a substantial cost to the county. The courts would be required to produce the enhancement forms required to be read prior to an entry of plea, and there was extra time involved in court as a result of going over the form with the defendant before a plea could be entered.

John Morrow, Chief Deputy, Washoe County Public Defender’s Office, noted he was not unsympathetic to the business interests represented in the committee; however, he thought there would be approximately 1,000 to 2,000 additional misdemeanor cases per year that would require appointed counsel if they enhanced the crimes to felonies. The national standard for indigent defense stated 400 non-traffic misdemeanors per year was a full caseload that could be handled competently by an attorney. He applied the standard to the numbers and came up with two to five additional attorneys for the Washoe County office alone. In addition to that increase there was the support staff, investigative staff, secretarial staff, and administrative overhead, so the figure climbed very high very fast. He was not sure enhancing the penalty to a D category crime was where they would want to go, particularly from a fiscal standpoint.

Mr. Morrow opined to the type and class of people involved in repetitive petty larcenies, they would not see much of a deterrent effect from removing one person from the street and throwing the individual in prison. The cost to the prison system could be at least $25,000 per year to support one prisoner based on a theft of less than $250. He thought the current penalties on the books were adequate and would sufficiently punish those people. He knew the thefts could not be stopped and the public would have to pay for them through either increased prices or filling up the jails, but he felt the present penalties were fairly severe.

Continuing, Mr. Morrow said there was also the possibility the crime could be moved to an attempted robbery because of the intimidation by the person removing the stolen item from the store or to a burglary because a person had no money and stole something and left the store. He called attention to the habitual criminal statute, which allowed for enhancement to life penalties petty theft offenses, that could be used to enhance subsequent felony convictions to habitual status.

Mr. Morrow reiterated his opinion the current law was more than adequate and had a minimum burden on the system and society and requested A.B. 85 not be moved forward.

Mr. Brower commented he agreed with the goal of the legislation, but did not want to pass a bill that would be subject to a subsequent attack on vagueness grounds. He referred to the language on page 3, lines 22 through 24, which seemed to give the merchant the right to detain a suspect if the suspect was seen to have concealed merchandise while on the premises. His concern was if the bill provided concealing merchandise on the premises without leaving, was a crime. If that was the case, it was a departure from the current law and he wanted to know how the witnesses read the provision.

In responding, Mr. Gibson referred to page 3, subsection 3 of A.B. 85 which allowed the merchant to stop an individual if they thought merchandise was being taken without making payment. He noted it looked like an attempt to strengthen the merchant’s perception of what they could do in those situations. He referred to testimony given earlier in the session by Ben Graham, Las Vegas District Attorney’s Office, when he educated the committee on criminal law, whether it was petty larceny or grand larceny there was an element called asportation which was moving something with the intent to steal it. That was all that was required for a merchant to stop somebody they suspected of stealing. Mr. Gibson related he was worried about language in the bill that could jeopardize the safety of a person. He called attention to a current robbery statute that was very liberal and indicated if a person was committing a petty larceny and as they were leaving the store they used force or the threat of force to allow them to leave, the crime was elevated to robbery.

Mr. Brower remarked from the public defender’s standpoint if a merchant stopped a person he or she saw concealing an object, and the person surrendered the object, was it the public defender’s opinion there would not be a crime committed.

Mr. Gibson replied there was a crime committed since the person took the object. In trial it would be argued whether the person intended to take the object or not, but generally if somebody picked up an object, looked around, and put the object in their pocket the crime was complete.

Mr. Morrow added to Mr. Brower’s question as far as the "out the door" situation. If an individual was apprehended outside the store, it could have positive aspects because it reduced confrontation; and from a defense standpoint, once the person was out of the store with merchandise concealed on their person, it was clear a crime had been committed and cut off the defense. He stressed there was a good reason for the "out the door" policy such as safety concerns and certainty of a conviction.

Lt. Olson testified he spoke only in regard to page 3, lines 20 through 24 of A.B. 85 pointing out the intent of the provision was an attempt at clarification.

Chairman Anderson questioned Ms. Lang about page 2, line 36 which would add, "the court shall order the person to pay restitution." He wanted to know if it was relative to the question of a category D crime or was the line a necessary addition to the list of under 5 years for the crime.

Ms. Lang responded the addition was similar to other theft felonies but was not a necessary addition. Chairman Anderson questioned for anything under $500 the court would not require payment of restitution. Mr. Lang indicated currently the court was authorized to impose restitution, but it was not required.

Chairman Anderson, in asking for clarification, stated A.B. 85 would make it a requirement to impose restitution rather than a suggestion, so it would be more limiting to the court and Ms. Lang agreed.

Chairman Anderson entertained a motion for amend and do pass retaining the language on page 2, line 36, "the court shall order the person to pay restitution" and referred to page 3, lines 20 through 24 requesting the bill drafter to clarify the language. He felt the crime did not warrant raising it to a category D crime given the nature of the other crimes in the category.

Chairman Anderson assigned the bill to himself.

The meeting adjourned at 10:45 a.m.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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