The Committee on Judiciary was called to order at 8:00 a.m., on Monday, March 15, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblywoman Giunchigliani, District 9, Clark County

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson opened the hearing on A.B. 372.

Assemblywoman Giunchigliani, District 9, Clark County, explained A.B. 372 added protection for group home residences and dealt with licensing. They wanted to include under Nevada Revised Statute (NRS) 200 those who were mentally ill or mentally retarded to have the same protection as an elderly person. She explained the language was not clearly spelled out in the statute and what was being found in the group homes was protection was not there for abuse and neglect. She wanted to be assured it would be covered and noted more group homes were being used as an alternative to mental institutions.

Chairman Anderson questioned if the bill was correcting an oversight from the 1997 session, which passed a piece of legislation that dealt with the elderly but did not address the treatment of the mentally ill or mentally retarded.

Ms. Giunchigliani agreed it was an oversight and indicated the Mental Hygiene and Mental Retardation Division (MHMR) was concerned about the oversight as well. Their concern was the number of group homes that did not have licenses, or homes of which they were not even aware. She mentioned while she was campaigning she found a group home for the mentally ill that had never been licensed. The people were living by themselves, and there was no care provided for them. She noted some were elderly, and she requested the bill so the elderly who were mentally ill would not be lost through a "loop hole" in the law.

Carlos E. Brandenburg, administrator, Mental Hygiene and Mental Retardation Division testified the advantage of A.B. 372 was it added the mentally ill and mentally retarded to the issue of reporting abuse and neglect. He noted they supported the bill, but the concern his department had was the fiscal impact it would have on them. They consulted with the Aging Services Division and saw what their caseload was and discovered the division did not have the ability to conduct investigations within a 90-day timeframe specified in the bill. He indicated he would be proposing funding for four social workers, two in the south, one in the north and one in rural Nevada that would enable the department to conduct the investigations within the timeframe.

Assemblywoman Leslie questioned what the definition of mental disability was as defined in the bill and what was the level of mental illness as indicated in the bill.

Dr. Brandenburg responded the bill covered all mental retardation including the related conditions and all mental illness. He noted Ms. Giunchigliani was astute enough to include all mental illness as it was defined in NRS 433.174.

Ms. Leslie queried if the four additional social workers would be investigating group homes in the private sector or would they investigate complaints from the institutes also.

Dr. Brandenburg understood the way the bill was written they would be investigating all alleged abuse and neglect, so they would be investigating the clients within MHMR as well as the clients in the public sector and all other areas of the state.

Chairman Anderson commented there was an increased number of people on the streets who had mental problems, and they caused an increased burden on the jails. He asked if investigating jails was part of the bill and Dr. Brandenburg responded affirmatively. If they received a report of abuse and neglect either from a county facility or the prison, they would be obligated pursuant to the bill to investigate and provide a report.

Chairman Anderson asked if that could lead to providing mental health treatment rather than incarceration.

Ms. Giunchigliani responded jails and prisons had been a problem and even though they attempted to screen the individuals, there had been a growing number of mentally ill sent to jail or prison. She indicated if a report of abuse or neglect was received by the division, and an investigation found an individual was being misplaced or not receiving treatment, they could be moved to a treatment program.

Chairman Anderson closed the hearing on A.B. 372 and brought it back to committee.

Chairman Anderson assigned the bill to Ms. Giunchigliani and opened the hearing on A.B.229.

Stan Olson, Lieutenant, Las Vegas Metropolitan Police Department, explained the bill was designed to divert juveniles involved in gang activity into a program to help them improve or increase their life skills or teach them skills they currently did not have. He noted they had a life skills program for adults in the Clark County detention center, and it was used successfully throughout the nation at a number of detention and correctional facilities. Lt. Olson indicated in Las Vegas there was a 65 percent success rate with the adult program in regard to recidivism issues.

Lt. Olson stated the program taught individuals how to budget, problem solving, decision making, controlling their habits and attitudes, emotional control, and motivation. The program had been expanded to juvenile use in some parts of the country, and that was the basis for developing A.B. 229. He stressed the goal of the program was to salvage those individuals who could be saved from gang life and give them a better chance for success in education, jobs, and family life.

Ms. Leslie questioned why the bill was needed because she was under the impression juveniles could already be ordered into that type of program. She was also concerned about page 2, line 13, as an example of the bill being overly specific about what the program must include. She indicated there already was a program in Reno to which juvenile authorities referred children and it included about 75 percent of the items mentioned in that section.

Lt. Olson responded he had met with the people who provided the adult program and they felt the bill had to be specific or it would not be a complete and successful program. They based their conclusion on the history with the adults and how successful it was. He noted juveniles today were more sophisticated and had to deal with issues a lot of the adults today did not have to confront when they were children. He felt if they did not give juveniles all of the capabilities the program offered, it would not be a success.

Mr. Carpenter asked why 14 years, 6 months was the age a juvenile had to be before they could start the program, and Lt. Olson replied he did not know why that age was chosen.

Mr. Carpenter thought the younger a juvenile could start a program the better it would be for the child. He felt 12 years of age would be better.

Chairman Anderson commented in section 2 of the bill, under the current language, an agreement for informal supervision must be entered voluntarily, but after 14 years of age it became mandatory.

Ms. Lang informed the committee the age of 14 years, 6 months applied to cognitive training, but it did not apply to general informal supervision. Chairman Anderson asked if they could be placed in other types of training programs prior to that age and Ms. Lang responded they could.

Lt. Olson indicated that was the age they could be considered adults.

Ben Graham, representing the Nevada District Attorney’s Association, explained prior to 7 years of age juveniles could not be held criminally responsible, but generally by 14 years of age, if they were committing adult criminal acts, they could be considered adults and would be responsible for their own actions.

Chairman Anderson commented he and Mr. Carpenter were more concerned with juveniles between the ages 9 and 14 years of age who occasionally got into trouble and needed a higher level of supervision. He noted the courts could put them into programs and cautioned that age tended to be an age where gangs recruited members.

Mr. Graham thought Chairman Anderson’s analysis, the courts could put them in programs as stated in section 2, subsection 2, was accurate. He understood the concern about starting juveniles in training programs at a younger age because of the sophistication of today’s youth.

Ms. Lang mentioned section 2 dealt with informal supervision, but there were other provisions in NRS 62.211 that set out different options for the judge to consider under the purview of the chapter.

Mr. Carpenter related he did not see why the age of 14 years, 6 months had to be stated in the language of the bill.

Lt. Olson stated his department would not have a problem reducing or removing the reference to age from the bill. He also noted it was not unheard of for gangs to cultivate children as young as the first grade.

Chairman Anderson closed the hearing on A.B. 229 and called for a discussion of proposed amendments to the bill.

Mr. Carpenter suggested the issue of age should be removed from the bill and let the courts and juvenile authorities make the decision.

Ms. Leslie reiterated she felt the bill was too specific on page 2, line 13. She did not want to send a message that judges could not refer juveniles to programs like the one she had mentioned earlier.

Chairman Anderson asked Ms. Leslie if she preferred changing the word "must" to "may" on page 2, line 13. She responded she still preferred more general language that did not include the list of specific elements. She referred to Washoe County again, pointing out they already felt they had the authority to refer juveniles to a training program, and it had been working successfully. She reiterated she was not 100 percent sure the bill was even needed and thought Lt. Olson did not address what the compelling reason was for the specific language in chapter 62 of the NRS.

Lt. Olson felt what Clark County had now was not working. Crime was increasing in the juvenile areas, and it was becoming more violent. He stressed northern Nevada might not yet be experiencing what southern Nevada was experiencing, and he hoped they would never have to experience it.

Ms. Leslie questioned was it because they did not have a program to which to refer juveniles or was it because they did not have the authority in the law to refer children to a program, and Lt. Olson responded it was a little of both. He pointed out juvenile authorities in southern Nevada were in the "same boat" as the police and all government areas because the growth in the area was "kicking their butt." Everybody was having a hard time keeping up with what was occurring. He felt the bill would help them to update, change, or "throw away and start over," those things needed to make the system work for the problems of today. He thought all of the items on the list of elements were included in Washoe County programs in one form or another, but without all of the elements listed a juvenile would not have the skills necessary to be successful. He pointed out it was hard enough to suggest to a child to work at a fast food restaurant when they could make a lot more money selling drugs.

Ms. Leslie responded she understood changes were needed but reiterated she was not convinced it could have been done anyway if there was a program available. She was willing to support the bill if it could be modified.

Chairman Anderson suggested they modify the bill to state "a program of cognitive training and human development must include when practical without limitation, education, instruction or guidance in the following subject." By adding "when practical" would allow the courts to meet the general requirements.

Ms. Leslie still felt the word "should" instead of "must" would keep the law less specific.

Assemblyman Gustavson agreed with Ms. Leslie the bill was too specific and felt the legislature would be micromanaging it into law, and he was concerned it would have to be changed again in 2 years.

Mr. Carpenter suggested the bill could be tailored to the different communities.

Chairman Anderson thought the lowest level of modification they could move to, and still leave it within the statutory requirements, would be changing "must" to "should" and adding "when practical."

Ms. Lang suggested leaving the word "must" followed by the words "when practical."

Ms. Buckley contended there could be language in the statute allowing the juvenile court to sentence an offender to any court approved program as long as each court in the jurisdiction adequately reviewed the programs.

Chairman Anderson commented he thought Lt. Olson was looking for more specific language to provide guidance for what elements should be included in a training course, because the current programs were not meeting what law enforcement felt was needed for juvenile offenders. Lt. Olson agreed with the Chair.

Mr. Carpenter indicated he would make a motion to include the language Ms. Lang had suggested and asked that the reference to age be removed from the bill.

To clarify what Mr. Carpenter had requested, Chairman Anderson referred to section 1, line 7, which referred to age and pointed out section 2, line 34 also referred to age. He also clarified Ms. Lang would reconstruct section 1, subsection 3, lines 13 through 15.

Ms. Lang articulated the language in section 1, subsection 3 would be changed to read "a program of cognitive training and human development must include without limitation, education, instruction or guidance in the following subjects when practicable."

Chairman Anderson clarified the word "must" would stay in language of the bill, but they would remove the words "when practicable."

Assemblywoman Angle felt if the words "must" and "when practicable" were removed it would take the teeth out of the bill and indicated the bill was not needed.

Lt. Olson responded they did need the bill and agreed with Ms. Angle, if the word "must" was removed then anybody could do anything they wanted to do. He reiterated what had worked for the adults he would like to see applied to juveniles.

Assemblyman Nolan asked what practical use they would have with the amended language if they removed the mandated language in the bill.

Clarifying for the committee, Lt. Olson stated when they arrested a juvenile, police officers were not allowed to know what the sentence was and they did not have an input on the sentence. He stressed that was one reason they wanted the bill.

Ms. Leslie reiterated her concern that without the amendment the program in Washoe County that was working but did not contain 100 percent of the listed elements, would no longer allow a judge to refer juveniles to a training program that was working. She objected to the "if practicable" language because it sounded like if it was practical they would do it, but if not, they would not do it. She stressed she was convinced not every child needed every one of the listed elements.

Ms. Lang suggested if Ms. Leslie wanted to leave the decision to the judge to determine which of the listed elements was necessary, the language could be amended to say something like "as deemed necessary by the court." That would leave it at the discretion of the judge to determine which of the elements was suitable for each particular child.

Chairman Anderson opined it would give judicial discretion but would not address the nature of the education program. It would give the judge the opportunity to select which program would be best for the child, and it provided a general list of things one department of government felt should be included in an educational program.

Chairman Anderson entertained a motion to amend a do pass A.B. 229. The amendments would be to remove the age requirement of 14 years 6 months, while maintaining the juvenile was a first time, nonviolent offender, and broaden the ability of the court to direct to a program and give guidance to what the program must include.

ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS A.B. 229.

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

A roll call vote was called for.

THERE WERE 12 YES VOTES AND 2 NO VOTES. ASSEMBLYWOMAN ANGLE AND ASSEMBLYMAN GUSTAVSON VOTED NO.

THE MOTION CARRIED.

Chairman Anderson assigned the bill to Mr. Carpenter to present it on the floor.

Chairman Anderson introduced 10 Bill Draft Requests (BDR) to the committee for approval.

• BDR 15-1597- Prohibits certain acts relating to sale, distribution, possession or use of laser pointers (A.B. 541).

• BDR 2-1648 – Provides that certain lawsuits against manufacturer or dealer of firearms or ammunition or trade association related to firearms or ammunition by governmental entity may be brought only by State of Nevada (A.B. 543).
• BDR 43-1583 – Revises provisions concerning driving under influence of intoxicating liquor or controlled substance (A.B. 542).
• BDR 2-956 – Provides exemption from enforcement of judgment for certain property of elderly persons (A.B. 548).
• BDR 14-1472 – Requires trials by juries in certain misdemeanor cases involving domestic violence (none assigned).
• BDR 9-1089 – Revises priority of certain liens acquired for storage, maintenance or repair of motor vehicle, motorcycle, motor equipment, trailer, mobile home or manufactured home (A.B. 547).
• BDR 15-1233 – Prohibits person from offering or paying remuneration to common motor carrier for soliciting or recommending patronage for or distributing coupons for business (A.B. 546).
• BDR 1-1091 – Makes various changes concerning fees charged by reporter of district court (A.B. 545).
• BDR 11-1598 – Requires court under certain circumstances to consider best interest of child when determining whether to grant permission to parent to move child out of this state (A.B. 544).

• BDR 15-1372 – Makes various changes concerning tobacco products (A.B. 549).

Ms. Leslie requested BDR 14-1472 be removed from the list and included as part of the interim study on misdemeanors.

ASSEMBLYWOMAN OHRENSCHALL MOVED TO ADOPT THE BDRs COLLECTIVELY WITH THE EXCEPTION OF BDR 14-1472.

ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson announced A.B. 56, which was scheduled to be heard, had been withdrawn and moved to another calendar at the request of the presenter, Assemblywoman Berman.

Chairman Anderson opened the hearing on S.B. 120.

Ben Graham, representing the Nevada District Attorney’s Association, began his testimony by starting with a background of the bill. He related anytime somebody talked about invasion of privacy, whether on a street corner, in the bedroom, or on the telephone, everybody became nervous or concerned. He indicated there were a number of constitutional safeguards to prevent the law enforcement community from invading a person’s expectation of privacy. He mentioned the necessity of probable cause in order to obtain a search warrant. Obtaining a search warrant for a storage unit or a home was fairly easy to do because of the burden of proof that was present in case law, which was needed before a search warrant could be obtained.

Mr. Graham explained when dealing with wire intercepts the requirements were raised considerably. Law enforcement could not use a wire intercept unless it was authorized by the court, and they must demonstrate they exhausted all other resources trying to locate evidence that would lead to a conviction. He noted they had to have probable cause in order to obtain a search warrant so they could have a wire intercept.

Mr. Graham indicated there was a limited list of how wire intercepts could be used. He pointed out in Clark County in 1997, there were only 10 wire intercepts and in 1998, there were only 12 used. It could take 2 to 3 days for a wire intercept to be authorized and for that reason they were the exception and not the rule. Evidence had to be very narrowly defined and a wire intercept was very costly because it was on a 24-hour basis for a limited period of time. Reports had to made back to the court while listening to the information on the wire, if it was an area that had nothing to do with a criminal activity they turned it down.

Mr. Graham concluded his testimony by stating in light of the limitations placed on obtaining and using wire intercepts he supported the bill.

Stan Olson, Lieutenant, Las Vegas Metropolitan Police Department, testified his department had brought forward four bills during the current session that dealt with gang activity. He informed the committee there had been 45 drive-by shootings in the Las Vegas area from January 1 through February 11, 1999, when he first testified on the bill in the senate. To date there had been 67 drive-by shootings, an increase of 22 since he first testified. Out of the 67 shootings, 22 people had been shot and 1 had died.

Lt. Olson explained when the police department requested a wiretap from the district attorney, a number of days were spent reviewing the request; however, the number of weeks and/or months that were spent by the police department in preparing the documentation and evidence to take to the district attorney’s office for review was tremendous.

Lt. Olson expressed concern about the increased number of drive-by shootings during the current year and noted most of the shootings were between gang members. He stressed at the current rate, if the shootings continued, by the end of the year there would be 414 drive-by shootings in the Las Vegas area. The shootings occurred in shopping malls, residential areas, school property, streets, parks, and apartment complexes.

Lt. Olson revealed the reason they were asking for the additions was because of the gang activities. He explained the police department’s gang detail was a 40-man unit. They dealt with shootings into homes and innocent bystanders being shot like a 4 year-old who was shot while trick or treating.

Lt. Olson concluded his testimony by pointing out, when dealing with gangs there was a true code of silence where they did not talk about each other and did not reveal who did the shootings. One drive-by shooting led to other shootings to get revenge. Neighbors who witnessed the shootings were afraid to come forward and talk to the police, so many of the shootings would never be solved. He stated by having the wiretap as an additional tool, it could reduce the gang activity in southern Nevada.

Jim Nadeau, Captain, Washoe County Sheriff’s Office and representing the Sheriff’s and Chief’s Association, expressed how fortunate northern Nevada was in not having the gang activity found in southern Nevada, they supported the bill.

Chairman Anderson pointed out in the 1991 and 1993 sessions gang activity was addressed relative to the volume of activity and Las Vegas experienced a dramatic growth in gang activity during that period. He questioned if the activity had shown a dramatic increase over the last three sessions.

Lt. Olson responded drive-by shootings had steadily increased from 1995 through 1997. In 1998, they experienced a decrease in shootings, but they had increased the number of personnel in their gang detail.

Ms. Buckley asked how the wire intercept would be used in a typical drive-by shooting and would it be enough to give probable cause.

Mr. Graham responded the only wiretaps used in the last 2 years had been for murder. He reiterated some gang members bragged about their activities and after following leads for several months and trying to track down the suspects, they hoped they could obtain pertinent information over the tapped phone lines.

Ms. Buckley questioned the wiretap would not be used for the commission of a future crime, but rather to gain evidence concerning a crime that had already been committed.

Mr. Graham explained the way the wire intercept statutes were currently drafted only information that dealt with a specific crime which the police were authorized to intercept would be admissible in court. If other names were mentioned concerning the crime they could followup on those as well as any admissions of guilt. He stressed it was very limited and would only be used for the specific offense for which the intercept was authorized.

Mr. Graham replied the bill would add three violent type offenses, battery with a deadly weapon, attempted murder, and discharging a firearm at or into an occupied structure.

Assemblywoman Koivisto expressed concern about the increase in wiretaps with the additional offenses added to the list of crimes and asked how many wiretaps they projected.

Lt. Olson responded every avenue was taken before a wire tap request was made. They used informants, undercover people, and physical evidence, without the use of a wiretap. He stressed there were many cases they could not solve without a wiretap, but he could not project a number. He noted if they had 67 drive by shootings during the current calendar year, there was no doubt in his mind they were being done by the same people over and again and those were the people on whom they would want to use a wire tap.

Mr. Graham added from an economical standpoint and the manpower needed, he anticipated approximately six wire intercepts per year, because it was such a massive operation to obtain a wire intercept.

Ms. McClain questioned if occupied structures were listed in the bill she wondered why vehicles were not mentioned in regard to drive by shootings.

Mr. Graham responded if attempted murder was added to the bill, it would cover shooting into a vehicle that was occupied. He noted randomly shooting into a building would be hard to prove an intent to kill somebody, but he conceded they might want to look at expanding the language to include vehicles.

Chairman Anderson asked if Ms. McClain was referring to page 2, lines 6 through 9 and she responded it was the area to which she was referring because it did not mention vehicles.

Ms. Lang responded most of the language in that section came from NRS 202.285, which did include vehicles so it must have been requested not to include vehicles in S.B. 120.

Mr. Brower pointed out discharging a firearm into an occupied structure was an offense already on the books, but thought adding the vehicle was an excellent suggestion.

Chairman Anderson read from NRS 202.285 and pointed out vehicles were in fact listed along with several other vehicle type structures and asked Lt. Olson if he requested the bill to be drafted like it was.

Lt. Olson responded if somebody shot into a vehicle it was obvious it was occupied, therefore they had the attempted murder. He reiterated if somebody shot into a house there was no proof somebody was in the house.

Chairman Anderson and Ms. Lang discussed adding the list of additional occupied vehicles listed in NRS 202.285 to the bill if the committee felt it was necessary.

Mr. Carpenter expressed his concern about the right of privacy and was opposed to opening it up to battery with the use of a deadly weapon and questioned what attempted murder entailed. He asked how a wire tap could be used to catch somebody who had committed an offense.

Mr. Graham reiterated because of the cost and work involved in obtaining a wire intercept and the limited nature of them, he thought battery with the use of a deadly weapon could be removed from the language in the bill. He did not see it being used very often anyway, because it was very hard to obtain a wire intercept.

Chairman Anderson and Mr. Graham discussed how wire intercepts could be used as evidence, and when they could be used. They also discussed when or if it would be attempted murder.

Ms. Buckley questioned why discharging a firearm into an occupied structure would not fall under attempted murder. Ms. Graham replied murder needed specific intent where a person knowingly intended to kill somebody. It went from intentional, to knowing, to reckless, and then to negligence. He indicated shooting into an occupied structure would not rise to attempted murder, but would be reduced to a lower degree of homicide.

Chairman Anderson closed the hearing on S.B. 120 and brought it back to committee. He moved the bill to a later work session.

Chairman Anderson adjourned the meeting at 9:55 a.m.

RESPECTFULLY SUBMITTED:

Chris Casey

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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