The Committee on Judiciary was called to order at 8:00 a.m., on Tuesday, March 9, 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 Dawn Gibbons, Assembly District 25

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson called the meeting to order. After roll was called, he announced there were two Bill Draft Requests (BDRs) for committee introduction.

• BDR 3-1065 - Revises provisions governing civil actions involving constructional defects and deficiencies (A.B. 442).

• BDR 5-574 – Authorizes juvenile court to require parent or guardian of child who is on probation or parole to pay costs associated with supervision of child (A.B. 443).

Chairman Anderson stated the committee would address A.B. 228 now instead of during the later work session.

Stephanie Licht, Legislative Liaison, Elko County Board of Commissioners, came forward to read a letter from Anthony L. Lesperance, Chairman of the Elko County Board of Commissioners, requesting the legislation be withdrawn or indefinitely postponed. The letter was attached as Exhibit C.

Chairman Anderson next opened the hearing on Assembly Bill 308.

Assemblywoman Dawn Gibbons, representing Assembly District 25, explained correctional officers had made her aware of the continuing problem with the presence of drugs in the Nevada State Prison System. She noted addiction to drugs and alcohol was implicated in the crimes and incarcerations of 80 percent of the men and women behind bars in America. She also drew attention to a Reno Gazette-Journal article documenting a lieutenant with the Nevada State Prison who had been charged with possession of marijuana which was attached as Exhibit D. Ms. Gibbons opined drugs that turned up in the prison must come from the outside, most commonly from visitors and other people who had access to prisoners. A.B. 308 would require the Department of Prisons to establish a program to use trained dogs to sniff people entering the prison in order to detect the presence of controlled substances and prevent them from entering the system. The bill would allow the director of prisons to apply for available grants and accept any gifts or donations to assist in the acquisition, training, and use of the dogs in order to reduce or eliminate the associated costs. She pointed out drug-sniffing dogs used a highly effective but passive alert system such as sitting down or quietly standing at or near the scent of illegal drugs and their detection rates were virtually unmatched. It would be her hope that nonintrusive method of drug detection would become a normal activity in Nevada’s prisons. Ms. Gibbons concluded her presentation by pointing out a proposed amendment supported by the Department of Prisons and the correctional officers which was attached as Exhibit E. She introduced Bob Bayer, Director of Nevada’s Department of Prisons, who would address the amendment and provide further information on the bill.

Assemblyman Manendo clarified the lieutenant allegedly charged with possession worked at a prison but was off duty at the time of the arrest.

Mr. Bayer came forward in support of A.B. 308 and proceeded to give a detailed review of the amendment (Exhibit E). The change to section 1 would make anyone coming onto prison property subject to search by the dogs. He explained minimum custody inmates worked on a variety of projects outside the fenced area. Anyone that came onto prison property could potentially have contact with an inmate or be in an area where at some point an inmate could be present and therefore have access to drugs. Noting that a search of the person was often not enough, section 2 allowed for the search of their vehicle and any property or goods which they brought with them. He explained discussion had occurred about whether a signal by a trained dog was probable cause or just reasonable suspicion. The new section 3 stated a signal by a drug dog would be probable cause for a peace officer to conduct a more thorough search. Mr. Bayer stated the new section 4 attempted to close any loopholes that could be claimed by a suspect who was believed to have brought narcotics or substances into the institution.

Chairman Anderson asked for clarification on how the program would be implemented. Mr. Bayer replied previously, the use of dogs had been restricted to searching the housing units and the inmates, but not staff or visitors. He reiterated A.B. 308 would allow the dogs to search anyone who came onto prison property.

Responding to an additional question by the Chairman, Mr. Bayer elucidated "reasonable suspicion" was included because a different burden was involved. Probable cause had a burden of proof that would have to be proved in court. Reasonable suspicion was not as restrictive. For example, if an inmate was observed acting differently or maybe they had been in contact with an individual who was under surveillance; those actions would not be proof enough for "probable cause". It would fall under reasonable suspicion.

Assemblyman Gustavson shared with the committee his experience of making deliveries to the prison. He noted his vehicle was always inspected but opined he could have found a way to smuggle drugs in. He inquired whether the bill would allow for the search of prison property such as bunks or items in the kitchen. Mr. Bayer referenced section 2 of the amendment which stated, "any property or goods which they have transported on prison property." He believed that would include items which were on prison property like a bunk. Mr. Bayer noted the laws of search and seizure applied to prison inmates as well.

Mr. Manendo expressed support of A.B. 308. In regard to the funding, he asked if Ms. Gibbons would try to obtain any type of state funding in order to implement the program. Ms. Gibbons stated it was not her intention to further burden the state’s budget.

Chairman Anderson asked if the funds needed for the current use of dogs was covered in the regular state prison budget. Mr. Bayer replied in the affirmative.

Assemblyman Carpenter inquired if there were dogs currently available and how often they were able to do searches. Mr. Bayer replied he was uncertain but noted when he was an associate warden, it was very random and infrequent. He recalled a dog had been used frequently at the Lovelock Correctional Facility but the dog had since gotten hip dysplasia. They were currently working on a proposal to obtain another dog.

In response to Mr. Carpenter’s question about the current drug policy, Mr. Bayer stated "Drugs certainly are not tolerated." If drugs were detected, the person would go before a disciplinary committee. A sanction would be imposed which could include taking away visits, eliminating good time credits, or changing their custody level. If staff was found to be involved with substance abuse, the harshest action was taken through the personnel disciplinary process.

Ms. Leslie drew attention to a memorandum which provided statistics regarding the number of substance abuse and alcohol violations the prison had recorded. It indicated 924 inmates were found guilty in the last 12 months of drug offenses. The memorandum was attached as Exhibit F.

A brief discussion ensued between Ms. Leslie and Mr. Bayer regarding the findings of Exhibit F and the earlier statement of "zero tolerance" of drugs in prison.

Referring to Exhibit F, Chairman Anderson asked for clarification of the term "medication". Glen Whorton, Chief of Classification and Planning, came forward to explain inmates could obtain medication by coercion or they purchased it from other inmates. It referred to prescription medication, not over-the-counter medication.

Assemblywoman Buckley questioned why dogs were not currently being used at prison entries. Mr. Bayer commented on the sensitive nature of using drug dogs with staff and visitors. Some people felt outraged they were subjected to that kind of search. He commented on the hardship caused by having a policy in place but not the law to support it.

Mr. Bayer added to his testimony peace officers in the prison system were not looked upon equally by other law enforcement, district attorneys, or the Attorney General’s Office. When it came to visitors, all they could do was try to hold the suspect in place and yet they should be allowed to make the arrests. He believed A.B. 308 would help the situation.

Assemblyman Nolan and Mr. Bayer engaged in a brief discussion about "zero tolerance" of drugs in prison as well as the machine used to test inmates for drugs.

Mr. Bayer offered to provide the committee more information about what institutions in other states had done to stop drugs in prison. He noted human beings were extremely creative and he had seen many very inventive ways of drugs infiltrating the prison.

Assemblyman Brower expressed support for A.B. 308 and agreed it should be amended to make the checks random. He pointed out the deterrent effect it would have.

Ed Flagg, President of Nevada Corrections Association, representing 450 of approximately 1300 officers, testified that organization presented the concept of A.B. 308 to Ms. Gibbons. He reiterated the reason for the bill was to eliminate drugs coming into the system. He noted the presence of drugs in the system made the correctional officer’s job extremely difficult.

Steve Barr, Nevada Corrections Association, expressed support for A.B. 308 and applauded Ms. Gibbons for bringing it forward.

Captain Jim Nadeau, Washoe County Sheriff’s Office, came forward and suggested the language of A.B. 308 would also be appropriate in Nevada Revised Statutes (NRS) Chapter 211 which dealt with city and county detention facilities. He repeated the concerns expressed earlier with the introduction of drugs and contraband into the detention facilities. He felt fortunate they experienced few incidents of that type of activity, but it was a possibility. Captain Nadeau pointed out currently drug dogs were used for parameter security and in the interior of the facility but not at the entrances. He believed it was important to try to deter that kind of activity in order to maintain safety for the employees and inmates.

Chairman Anderson inquired if broadening the scope of the bill to include local and municipal levels had been addressed. Captain Nadeau stated Ms. Gibbons had indicated she would be amenable to the idea.

Chairman Anderson stated the idea caused him some concern. "It raises another set of questions relative to who is coming in and out of a holding facility in a municipality as compared to everybody inside the prison system is adjudicated as guilty." He believed that issued would need to be more thoroughly addressed.

Captain Nadeau and the committee further discussed broadening the bill to include city and county detention facilities.

Mr. Collins asked for further clarification of the use of the word "random". He also questioned if people did not submit themselves to a search as a condition of visiting an inmate. Captain Nadeau confirmed people who came into the secure area or the confines of the facility submitted to a search. He repeated that would be probable cause for a more thorough search to be conducted based on the alert of a dog. The term randomness was being used because if it was mandated, the staffing and dog requirements would be unrealistic. Randomness would also be a deterrent because people would be less likely to bring items in if a dog's presence was a possibility. The dogs would not be identifying any particular individual; random meant the opportunity to use the dogs on a periodic basis rather than all the time.

Karen Winckler, a private attorney from Las Vegas and a representative for the Nevada Attorneys for Criminal Justice, testified in favor of A.B. 308 because it encouraged safety in the prison system. However, she expressed concern a sign need to be posted at the entrance of the property to notify people they could be subject to search as well as their personal property such as a vehicle.

Mr. Bayer testified signs were posted at every entry to the facility stating they were subject to search and the appropriate regulations were cited.

Chairman Anderson closed the hearing on A.B. 308.

Mr. Gustavson remarked he supported the bill as well as the amendment. He believed the use of a dog would be an exceptional way to help deter drugs getting into the prison.

In regard to broadening the bill, Chairman Anderson reiterated his previous concern. He announced he would reschedule the bill if that was the committee’s desire.

Mr. Nolan expressed unease at the purported relegation of correctional officers.

Mr. Flagg clarified there were currently four bills being contemplated which would upgrade correctional officers from a category three status to a category two status which would address their powers of arrest, search, and seizure.

Chairman Anderson assigned the bill to Ms. Gibbons for presentation on the Assembly Floor and opened a work session.

Chairman Anderson introduced Ted Zuend, Deputy Fiscal Analyst, Legislative Counsel Bureau. He recalled a question arose at an earlier meeting relative to various counties in the state being at the property tax cap. That created a limited ability to deal with questions of fees, fines, and forfeitures in terms of funding formulas.

Mr. Zuend provided a brief review of the ad valorem tax rates for Nevada’s local governments. The committee was provided a copy of a document compiled by the Nevada Department of Taxation for the fiscal year 1997-98, which was attached as Exhibit G. He explained it was a compilation of all the property tax rates and assessed values for every county in the state. He pointed out the rate schedules of Clark, Washoe, and Douglas Counties were more complicated and reiterated several counties, such as White Pine, had reached the $3.64 cap. He clarified the cap was $3.64 per $100 of assessed valuation. Mr. Zuend announced there was "no wiggle room" in the rates of certain jurisdictions to raise property taxes to pay for additional services or if the state absorbed some of the revenue from local governments.

Continuing his presentation, Mr. Zuend provided a highlight of the statistics provided in Exhibit G. Page 48 showed the impact on a particular taxpayer using a $100,000 market value home as an example. Page 49 showed the various revenues for the convention and visitor bureaus in the state but noted it did not necessarily have anything to do with property taxes. Page 50 of Exhibit G showed the voter approved overrides within the various jurisdictions. It indicated what date it was approved and how long the override would continue, but it did not include debt. Page 53 showed a summary by county of how much assessed valuation there was, how much revenue the schools raised from their taxes, how much the counties, cities, towns and special districts raised, and how much total property tax was collected in each of the counties. It then calculated an average countywide tax rate. Mr. Zuend noted it was not a tax rate that a particular taxpayer might pay but a calculation of what the average taxpayer in the county would pay. He concluded the property tax had been going up steadily in the state pointing out the rate in 1981-82 was probably less than $2.00 per 100 of assessed valuation. Since that time the state has effectively added $.40 of a rate. He remarked there were bills in the process which would attempt to deal with those counties at the maximum rate and needed additional revenues.

Mr. Zuend agreed to provide the committee members with the ad valorem tax rates for the fiscal year 1998-99 and explained his office produced other related documents.

Assemblyman Claborn expressed concern with assessments. Mr. Zuend clarified Exhibit G did not address assessments. He noted they appeared on a property tax bill and were designed to pay off debt but were separate from the property tax issue.

Don Williams, Committee Policy Analyst, drew attention to the work session document, attached as Exhibit H, specifically item number 2.

Assemblyman Ohrenschall explained she had received additional proposed amendments to A.B. 121. She intended to have a final meeting of the subcommittee before the end of the week.

Mr. Williams continued with item number 3 of Exhibit H. He explained Mr. Carpenter had requested additional information on crimes which currently allowed for enhanced penalties. A memorandum from Michelle Van Geel, Research Analyst of the Legislative Counsel Bureau, was distributed to the committee to address his request. The memorandum was attached as Exhibit I. Mr. Williams stated he had copied the various statutes referenced in the memorandum and they were attached as Exhibit J.

Chairman Anderson and Assemblyman Brower engaged in a brief discussion about Assembly Bill 117.

Mr. Brower expressed his desire to see the committee take action on the bill. Chairman Anderson explained there were problematic issues in the bill and it would be up to the committee to decide how to proceed.

Assemblywoman Buckley presented a status report on Assembly Bill 154. She told the committee she had met with Judge Scott Jordan, Judge Diane Steel and some trial lawyers and they had discussed amendments especially in regard to offers of judgment. She suggested the committee move to amend and rerefer to the committee on judiciary so that a clean copy, including those amendments, could be further reviewed.

Chairman Anderson expressed concern with the time that would require.

Ms. Buckley acknowledged the time constraints and stated she would draft the proposed amendments.

Mr. Nolan inquired about the status of Assembly Bill 52.

Ms. Leslie remarked she was still awaiting his amendment and upon receipt would schedule a subcommittee meeting.

Mr. Nolan apologized as he thought the proposed amendment had already been provided to her and stated he would get it to her immediately.

There being no further business before the committee, Chairman Anderson adjourned the meeting at 10:25 a.m.

RESPECTFULLY SUBMITTED:

Jennifer Carnahan,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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