The Committee on Judiciary was called to order at 8:30 a.m., on Wednesday, February 24, 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:

Assemblyman Wendell Williams, Assembly District 6

Assemblywoman Merle Berman, Assembly District 2

Senator Michael Schneider, Senate District 8

Assemblywoman Dawn Gibbons, Assembly District 25

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Sandra Douglas, private citizen

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

Following roll call, Chairman Anderson welcomed a class from Western High School who was visiting the Nevada State Legislature.

Chairman Anderson announced the first bill to be heard would be Assembly Bill 117.

Assemblywoman Merle Berman, Assembly District 2, introduced A.B. 117. She explained under current Nevada law, if an individual wore or used body armor during the commission of a crime, the action would not constitute an offense. The proposed measure would not define the action as a separate offense, but it would increase the sentence prescribed for the commission of the primary offense. "The increasing availability of body armor in the wrong hands without fear of more severe punishment gives us a future of greater danger to our State." Referring to several handouts submitted to the committee (attached as Exhibits C, D, and E), she pointed out anyone could order body armor on the internet or from a magazine with nothing but a credit card. Ms. Berman announced many other state legislatures had enacted body armor legislation. In 1998, California signed into law the James Guelff Body Armor Act. The legislation was named for a San Francisco police officer who was killed in 1994 by a heavily armed gunman wearing a bulletproof vest and helmet. She introduced Lee Guelff, Officer James Guelff’s brother, who would testify before the committee. He had been instrumental in the enactment of California’s body armor law and was nearing success on having the law passed at the federal level. She concluded by urging the committee to support A.B. 117.

Lee Guelff thanked those who had given their time and support to the issue, especially Assemblywoman Berman. He explained to the committee, on November 13, 1994, his brother, Officer James Guelff of the San Francisco Police Department, a 10-year veteran and member of the swat team, responded to a "shots fired" call. During the initial round of fire, he had shot the gunman several times but nothing penetrated the assailant’s protective body armor. In the process of reloading, his brother was shot in the head. The suspect was hit twice in the head and six to eight times in the body but was able to continue to fire at will until he was finally brought down by a police sniper. He shared with the committee two additional incidents, which involved suspects wearing body armor. In those incidents, it was the protection afforded the gunmen by their body armor, which enabled them to continue the gun battle long after it could have been stopped. "It is bad enough when officers have to face criminals in possession of superior fire power but to have to confront suspects shielded by equal or better defensive protection, I believe goes beyond the bounds of acceptable risk." He expressed belief his brother would have lived, if the assailant had not worn bulletproof body armor. Mr. Guelff noted it was his intent to find a solution to the growing criminal use of body armor which would respect the rights of law abiding citizens and yet, provide a necessary measure of protection to the nation’s law enforcement officers. In conclusion, he drew attention to a handout distributed to the committee containing a list of names and letters from people across the country who supported the act, a copy of the California bill, and the pending legislation before the House and Senate. The handout was attached as Exhibit F.

Bill Hemby, California Organization of Police and Sheriffs (COPS), stated COPS supported the California legislation as well as A.B. 117. He noted the California bill differed from A.B. 117 but that A.B. 117 was a step in the right direction to offer protection to police officers. He shared with the committee his experiences as a policeman and asked the committee for its support.

A brief discussion ensued between Chairman Anderson and Mr. Hemby regarding the definition of body armor. Mr. Hemby opined body armor could consist of something other than protective clothing, but it would have to be designed to diminish the affect of the impact of a bullet or projectile. He pointed out a motorcycle helmet would not fit the definition because it was not designed to safeguard somebody from being shot. In regard to a hunting vest, Mr. Hemby said if the vest was not constructed and manufactured by a body armor company for the particular purpose of protecting a person against firearms, it would not fall under the definition.

In response to Chairman Anderson’s inquiry, Mr. Hemby reiterated it was a penalty enhancement bill. It would not prohibit anybody, including an ex-felon, from wearing body armor.

Assemblyman Nolan pondered if the bill was as restrictive as if could be. He expressed concern there was no deterrent as a criminal would be either ignorant or not care about the laws. He questioned how to deter criminals from wearing body armor.

Agreeing with Mr. Nolan’s comments, Mr. Hemby explained the legislation passed in California was proactive and addressed Mr. Nolan’s concerns. While A.B. 117 was not as restrictive as the California legislation, it would be a step in the right direction. Mr. Hemby opined the bill would serve as a deterrent and if it did not, they could return to the issue for improvement. Referring to Exhibit E, he stated, "It seems to be having its effect in California as is evidenced by the news release, which was carried by the L.A. papers."

Assemblywoman Leslie stated her opinion that the restriction of the sale of body armor would go further in regard to prevention.

Acknowledging Ms. Leslie’s insight, Ms. Berman reiterated A.B. 117 would be the first step towards that goal and it would be her intent to closely track its progress. She pointed out the severity of the problem was much greater in California than in Nevada.

Mr. Hemby further responded the California law did not include a restriction on sales; however, they were looking into the feasibility of requiring registration. He noted restricting sales would have an impact on limiting corporate sales.

Chairman Anderson commented it was a good piece of legislation but should be approached cautiously. He observed there were a number of private individuals, such as school administrators, who felt the necessity to wear body armor for their own protection.

Captain Jim Nadeau, Washoe County Sheriff’s Office, testified in favor of A.B. 117 and presented a ballistic helmet used for tactical purposes by police agencies as well as a ballistic vest for the committee to see. He stated the number of incidents in northern Nevada in which body armor had been involved was limited. He reiterated A.B. 117 did not preclude anyone from wearing a vest but enhanced the penalty if someone wore it while committing a crime. He shared with the committee an incident that occurred in northern Nevada in which an individual had robbed a casino wearing body armor. He concluded the individual was shot several times in the body armor but only after he was shot in the leg was he arrested.

Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Sheriffs and Chiefs Association came forward in support of the legislation. Echoing the comments made by Mr. Nadeau, he pointed out the use of body armor during the commission of a crime showed clear intent and tactical consideration on the part of a criminal and their intent to resist. Mr. Olsen declared those individuals definitely presented a clear danger to both law enforcement and the public.

Mr. Nolan questioned if body armor piercing bullets were against the law. Mr. Williams stated Nevada Revised Statutes (NRS) 193.163 provided the use of those type of bullets in a commission of a crime would be punishable by imprisonment in state prison for a term equal to and in addition to the term for imprisonment prescribed in the statute.

Responding to additional comments by Mr. Nolan, Mr. Olsen suggested a person might wear body armor if they had been threatened or if they had a job that put them in some line of risk such as a bodyguard or private security. He further noted a person could order clothing such as a sport coat, in which body armor had been sewn in. "It does not have to look like an actual piece of body armor."

Responding to Ms. Leslie’s desire to create a deterrent, Mr. Olsen said A.B. 117 would probably not deter a criminal but it would be another tool that would allow for prosecution of the individual. He commented, "It is not always a case where someone is going to be in a shoot out situation." If no gun was involved, the penalty could still be enlarged because the enhancement existed.

While not opposed to the legislation, Assemblyman Carpenter expressed concern with the number of existing enhancements.

In regard to Mr. Carpenter’s concern, Ms. Lang clarified section 2 of A.B. 117 provided that only one enhancement could be applied. She agreed to compile a list of all existing penalty enhancements for the committee.

Sandra Douglas testified as a private citizen and expressed concerns with the bill, specifically who the bill would apply to. Ben Graham, Nevada District Attorney’s Association, reiterated A.B. 117 would apply to anyone who committed a crime, including an off-duty police officer.

David Gibson, representing the Clark County Public Defenders Office and testifying on behalf of John Morrow from the Washoe County Public Defenders Office, commented his only concern with the bill was along the same lines as Mr. Carpenter’s; only one enhancement was allowed per crime. He opined a criminal wearing body armor would most likely also possess a gun. In that case, a district attorney should promote enhancement due to the possession of a weapon rather than body armor. Mr. Gibson stated the bill did not change the current legal situation.

Assemblyman Brower queried if the district attorney’s office could seek alternative enhancements in a prosecution. Mr. Olsen replied in the affirmative but explained it would be the jury’s decision to choose one enhancement from those alleged.

John W. Riggs, Sr., representing gun owners of Nevada, came forward in support of the bill because it did not affect law abiding citizens and would protect police officers. He felt doubling the sentence would send the right message to criminals.

Chairman Anderson closed the hearing on A.B. 117. He expressed his intent not to take action on the bill until the committee was able to review a list of existing penalty enhancements.

Chairman Anderson introduced a bill draft for committee introduction requested by the Administrative Office of the Courts:

• BDR 11-846 – Makes various changes regarding adoption of children and protection of children from abuse and neglect in accordance with certain federal requirements (A.B. 315).

Chairman Anderson explained his intent to ask for expedited processing of the BDR.

Chairman Anderson opened the meeting on Assembly Bill 120.

Ben Graham, Nevada District Attorney’s Association, explained the intent of the bill was to provide the criminal defense bar and the prosecution bar authority to transmit various documents back and forth with one another via the fax machine. There was a district court rule, which allowed for transmission by fax, but it was not uniform throughout the state nor was it applicable to justice court or justice court documents. Mr. Graham pointed out A.B. 120 currently included the criminal bar as well as the civil bar and emphasized that was not the intent. The bill was not intended to include civil practice because input he had received from civil practitioners indicated it would be too cumbersome. He suggested an amendment would be in order changing "Chapter 14" in section 1 of the bill to "Chapter 174". That would limit the provision to the criminal procedure area and not be as inclusive. He apologized to the committee and to the drafters for the error.

After confirming Mr. Graham’s amendment with Ms. Lang, Chairman Anderson asked for questions from the committee.

Assemblywoman Buckley pondered if different standards were being created based on whether or not a person was represented by an attorney but recognized if there was the potential for prison, a lawyer would be involved and it would be less of an issue.

Mr. Graham expressed understanding of her concern and agreed that within the criminal practice, attorneys would probably be involved. He explained it would not be equitable to be able to serve a document on a layperson who did not know about the time frames associated with service and then use it to their advantage if a deadline was missed. Mr. Graham did not believe a layperson would be unduly burdened.

Chairman Anderson questioned if, in a criminal case, it was required to serve both the attorney and the client.

Jay Charles Thompson, Las Vegas District Attorneys Office, came forward and replied if an individual was represented by an attorney, the law required the opposing side to serve the attorney but not the individual. If a person chose to represent himself, the opposing side would serve the individual by personal service. Mr. Thompson further explained only if an individual was represented by an attorney, could the opposing side to the lawsuit serve them through the use of a fax machine. He concluded that was the current practice.

Responding to another question by the Chairman, Mr. Thompson stated the only money saved from service by fax would be in terms of the runners that were hired by the defense bar and the prosecutor’s office to serve the documents.

Chairman Anderson further questioned if the bill required proof the fax was sent. Referring to section 1, subsection 2, Mr. Thompson pointed out A.B. 120 required a confirmation of transmittal be attached or included with the original document filed with the court. He elucidated federal law required fax machines to indicate the date and time of the receipt of a fax.

Answering a question by Mr. Carpenter, Mr. Graham opined the issue of whether or not an individual received a document should be preserved for argument in a motion to suppress or something similar to that. It would be overburdensome to require confirmation of receipt of a document. He noted the current practice worked well.

There being no one else wishing to testify, Chairman Anderson closed the hearing on A.B. 120.

Chairman Anderson assigned the bill to Assemblyman Manendo for presentation on the assembly floor.

Anthony L. Lesperance, Chairman of the Elko County Commission, testified Elko County requested A.B. 123 on behalf of Spring Creek, a common-interest community. The purpose of the bill was to provide a population threshold to maintain current exemptions of certain common-interest communities from the ombudsman and individual meeting notices. He explained if Spring Creek lost its current exemptions, the fiscal impact would pose an excessive financial burden. Mr. Lesperance’s prepared comments were attached as Exhibit G.

Duane McPherson, President of the Spring Creek Association, reiterated Mr. Lesperance’s comments and noted the intent of A.B. 123 was to stay within the grandfather clause. Spring Creek was created 28 years ago and while there had been some problems, Mr. McPherson believed Spring Creek had been successful. He explained the procedures Spring Creek currently followed in regard to meetings and notices and drew attention to its governing documents included in Exhibit H. He declared $200,000 was approximately 13 percent of its annual operating budget, which was, in effect, similar to a 13 percent increase in fees to the association. He believed to pass those fees on to the property owners would not be fair. Mr. McPherson’s prepared testimony was attached as Exhibit I.

Chairman Anderson queried if the bill was actually in the purview of the Committee on Judiciary and if it would not be better served in the Committee on Commerce and Labor.

Senator Michael Schneider, Senate District 8, came forward to testify on A.B. 123. He opposed the exemption for counties whose population was 100,000 or less. He noted that would exempt homeowners associations where there were "real problems" such as the "egregious violations" that occurred within the Glenbrook homeowners association. He told the committee he would introduce a bill next week that would attempt to address some of the notification problems the associations had experienced and would be willing to work with those affected, but reiterated his opposition to exempting them completely. He concluded he would support the committee moving to re-refer A.B. 123 to the Committee on Commerce and Labor.

Mr. Carpenter expressed support of Senator Schneider’s comments.

Chairman Anderson did not want Mr. McPherson to feel the committee was not mindful of their situation and asked for his opinion whether the Committee on Judiciary should rerefer the bill. He noted if A.B. 123 was rereferred to another committee, it would allow him more time to draft his amendment.

Mr. McPherson approved of the committee rereferring A.B. 123.

Chairman Anderson closed the hearing on A.B. 123 and stated he would entertain a motion.

Chairman Anderson opened the hearing on A.B. 159.

Assemblywoman Dawn Gibbons, Assembly District 25, came forward as the sponsor of the bill. She introduced Anne Peirce, Vice President of Western Insurance Specialties, and Matt Williams, Claims Director of Western Insurance Specialties. Ms. Gibbons explained currently, NRS 688A.420 prohibited a person from collecting the proceeds of a life insurance policy if he was convicted of that policyholder’s murder. The intent of A.B. 159 was to amend NRS 688A.420 by further disallowing collection of life insurance benefits if the beneficiary committed voluntary manslaughter or conspired to commit the murder of the policyholder. Ms. Gibbons noted states such as California, Idaho, and Oregon also mandated a forfeiture of life insurance benefits for crimes other than murder by the beneficiary. She expressed hope the committee would share her feelings as to the importance of the legislation and urged their support of A.B. 159.

Ms. Peirce thanked Assemblywoman Gibbons for introducing the bill and all of the co-sponsors. She hoped passage of the bill would correct a huge hole in the current law.

Mr. Williams echoed Ms. Peirce’s comments and reviewed in further detail A.B. 159. Many people with whom he had spoken thought it was an issue of common sense and pointed out it had already been covered in NRS. He stated unfortunately, there was still opportunity for those directly responsible for a person’s death to collect the life insurance proceeds of the decedent. Mr. Williams shared with the committee two situations where he had seen life insurance proceeds paid directly to convicted felons for killing a member of their family. One case was a man who murdered his mother. The man went to trial for murder but pled guilty to voluntary manslaughter. Because he was not convicted of murder, he was eligible to receive the proceeds of the life insurance policy on his mother. Mr. Williams stated his portion was sent directly to him, care of the Nevada State Prison in Jean, Nevada. The other case involved a woman and her son who conspired to kill her husband. In exchange for testimony against her son, she also pled guilty to voluntary manslaughter. The insurance company had no other choice but to follow NRS 688A.420. Mr. Williams declared in both cases, there was a double indemnity clause as part of an accidental death rider on the policies. Both killers got paid twice the benefit amounts. He stated, "We believe this money would be much better served if it was in the hands of the grieving surviving family."

Ms. Koivisto questioned to whom the insurance proceeds would be paid if a secondary beneficiary was not listed. Mr. Williams replied each life insurance policy carrier had a set list of beneficiaries if the first beneficiary was not living. In the State of Nevada, the list was spouse, children, parents, siblings and lastly estate. He further replied under no circumstances would the policy not be paid.

Ms. Ohrenschall expressed support for A.B. 159.

Chairman Anderson inquired if the bill would affect an individual who assisted in a terminally ill person’s death. Mr. Graham said it would depend if the person was prosecuted and found guilty of conspiracy to commit murder.

Responding to a question by Mr. Nolan, Mr. Graham clarified "conspiracy takes a meeting of the minds of two or more guilty parties to conspire together to commit a specific act."

There being no one else who wished to testify on A.B. 159, Chairman Anderson closed the hearing.

Chairman Anderson adjourned the meeting at 10:40 a.m.

RESPECTFULLY SUBMITTED:

Jennifer Carnahan,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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