The Committee on Judiciary was called to order at 8:10 a.m., on Thursday, March 18, 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:

Merle A. Berman, Clark County Assembly District 2

David E. Humke, Washoe County Assembly District 26

Richard D. Perkins, Clark County Assembly District 23

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

C. Edwin Fend, Lobbyist, American Association of Retired Persons (AARP)

Victoria Riley, Legislative Representative, Nevada Trial Lawyers Association (NTLA)

Chairman Anderson called the meeting to order and proceeded with roll call. There was a quorum. He announced he planned to hold evening meetings due to the large volume of bills to be heard by April 9.

Chairman Anderson introduced and gave a brief overview of the following Bill Draft Requests (BDRs).

• BDR 16-458 – Clarifies and expands authority of board of state prisons commissioners and director of department of prisons regarding administrations and employees of department. A.B. 619

• BDR 3-295 – Authorizes certain persons to petition for post-conviction writ of habeas corpus on behalf of real party in interest under certain circumstances. A.B. 617

• BDR 15-589 – Makes various changes concerning crime of nonpayment of child support or spousal support. A.B. 617

Myla Florence, administrator, Welfare Division, Department of Human Resources, appeared before the committee to repeal a statutory requirement in Nevada Revised Statutes (NRS) 483.380. A.B. 410 related to the federal requirement of individuals delinquent in child support payments, and who were subject to suspension or revocation of their driver’s license if payments were not made. Intent of the National Welfare Reform Law passed in 1996 had been satisfied through the automated matching system Welfare Division used in conjunction with the Department of Motor Vehicles and Public Safety and the statute was no longer necessary. There was no discussion on the bill.

Assemblyman Collins was assigned the bill.

Assemblyman David E. Humke, Washoe County Assembly District 26, informed the committee the proponent of the bill was not available. The unnamed proponent had been in Tonopah meeting with other members of the board of the family law section. Mr. Humke requested the bill be referred to a subcommittee so the proponent would be able to submit written testimony. The proponent constructed a formula for use by the district courts of the state. The use of the formula would be discretionary rather than mandatory as previously proposed. Mr. Humke felt the bill deserved a hearing and consideration by the Committee on Judiciary.

Assemblywoman Buckley felt the subject of alimony was very important, although she did not practice much family law she had been working on a "self-help center" and creating forms to be used by individuals in "pro per" who were not able to afford legal advice. She had talked with various judges and Supreme Court Justices who felt "there was so little guidance available in the laws it was a crap shoot" whether a man or woman received alimony, there was no consistency. In some cases women who should receive alimony did not, and in other cases it seemed unfair that someone had been married for a long time and was disabled was not getting as much as someone who had been married for a very short time. She felt it was an important area and one where guidance was needed for the good of the people in the system.

Mr. Humke again apologized to the committee and expressed his embarrassment at the lack of a witness. There was a serious need especially for the "pro per litigant" to be able to understand the system and hoped the committee could work out some type of formula to assist those persons as well as the court.

Chairman Anderson revealed Mr. Humke had brought the lack of a witness to his attention yesterday, which was too late for him to remove that bill from the agenda and substitute another.

Assemblyman Gustavson noted after studying the bill and looking at formulas he was glad he was not a judge who had to make decisions based upon the formula. Alimony was a complicated issue, the proposed bill was permissive, and the formula just added to the complication. He thought the committee was looking for uniform guidelines for the courts to use and questioned the need for legislation. He hoped the judges would be able to come up with some type of formula while meeting in Tonopah.

Mr. Humke said Mr. Gustavson had asked an excellent question. He was not capable of explaining the formula and safety valves. He appreciated Ms. Buckley’s initiative in developing the "self-help center" in the Eighth Judicial District and stated a similar one was planned for the Second Judicial District where people not represented by counsel could go for assistance. In the "self help centers" the main item of assistance was a set of forms, meant to reduce a complicated language and written in layman’s language for easier understanding.

In conclusion he asked the committee’s indulgence on the bill and said "it was a good concept and let it live another day, week until something can be worked out."

Chairman Anderson suggested the proponent be made to understand the April 9 deadline. Mr. Humke said he would relate the remarks.

At that time Valerie J. Cooney, legislative representative, Nevada Trial Lawyers Association (NTLA) testified against A.B. 421. She was scheduled to go to Tonopah but stayed to testify. She stated the NTLA opposed the bill as they had in the previous session. Ms. Cooney took issue with Mr. Humke regarding his remarks on the measure and doubted whether the complicated nature of the measure would help any individual or agencies. The persons staffing self-help centers would not have the resources to provide the necessary information and data to apply the formula due to the complex nature of the formula. Ms. Cooney asked if Mr. Anderson wanted her to continue or wait until the proponent was available to introduce the bill.

Chairman Anderson said the opportunity for another full hearing on the bill was zero. It would almost be impossible to be given to a subcommittee for further hearing because they were having difficulty working out a schedule due to their major timelines. He said he would leave the hearing open to allow opportunity for someone to enter additional information into the record.

Ms. Cooney continued and went directly to sections 4,5,6,7, and 8 of the bill, stating concerns not only with the complex nature of the calculation but also what appeared to be arbitrary numbers and percentages. She said no one could figure out from where the numbers were derived. She felt the proponent of the bill would be able address the issues. A computer program and a considerable amount of research would be needed to be able to apply the formula. Fairness and uniformity was needed to satisfy everyone and she felt the bill did not achieve that goal. No one had contacted the NTLA for input. She further stated the complex formula could not be reduced to a single form.

Ms. Cooney did like the idea the language was discretionary as opposed to mandatory as it was presented in the 69^th Legislative Session.

Ms. Buckley said for the first time in the session she would stand up for Mr. Humke. She did not feel he said the bill would solve all of "pro se litigants" problems. She felt the bill was too complicated and something was needed to provide a guideline for lawyers, judges, and those who could not afford attorneys.

Ms. Buckley asked Ms. Cooney if she had anything constructive to offer in terms of what she thought might bring some consistency yet be fair and simpler to understand.

Ms. Cooney replied she did not have anything specific to offer in terms of amendments to the bill or another suggested formula. She would be happy to participate in discussion to obtain a workable solution or proposal.

Chairman Anderson assigned the bill to Assemblyman Brower to facilitate any communications received.

Mr. Anderson brought A.B. 421 back to the committee.

Assemblywoman McClain felt the concept of the bill was good and hoped the committee could do more to make things easier for people in dissolving relations and for women to obtain adequate support to properly care for their families.

Assemblyman Merle A. Berman, Clark County Assembly District, testified that going door to door in her neighborhood she found a number of grandparents either fully in charge of their grandchildren or trying to obtain visitation rights. Due to the inequity they all got together, addressed provisions, and wrote and prepared A.B. 436 which she called grandparents’ bill of rights. The bill addressed and expanded the rights of all grandparents giving the need for increased grandparent visitation.

She offered the following changes to state law in support of A.B. 436. Section 1 amended NRS 125A.330 regarding visitation rights of grandparents and limited the application of the statute to great-grandparents and other children of the child’s parents. Section 1 also expanded the circumstances a court must consider when determining whether to award additional visitation rights to any party including grandparents, great-grandparents, and other children of the child’s parents.

Factors would include whether the child had resided with grandparents and the amount of visitation time a child had previously spent with the grandparents such as holidays and family gatherings. Courts also took into consideration the amount of financial support the grandparent had provided for the child. Expansion of visitation rights should be taken seriously and studied on a case-by-case basis. The court must review all of the factors with the best interest of the child as primary consideration.

A.B. 436 expanded the right of grandparents to visit the child and included circumstances where the child’s parent was not legally married to the other parent and separated or whether the parents never lived together. She urged the committee to adopt the measure because she knew it would help the children and the grandparents.

C. Edwin Fend, lobbyist, American Association of Retired Persons (AARP) testified in favor of the bill. "In the days of families who were separated where it was difficult for grandparents and parents to get along it was important for the rights of the grandparents, and children needed to be protected." There were grandparents who had difficulty seeing children after a divorce or separation. Grandparents could provide stability to keep the child on a straight and narrow path, provide additional financing to the home, and take care of problems that existed. He urged the committee to protect the rights of the grandparents. Personally it would destroy him if he could not visit his grandchildren to provide the support and wisdom he hoped he had accumulated over the past 70 years.

There was also language included in the measure to protect a child from abuse by grandparents.

Chairman Anderson said the stability of the child should be the first order of business.

Ms. Berman referred to a letter from Steve and Toni Brooks who were paying child support their son would not pay (Exhibit C). She also referred to petitions received (Exhibit D) and (Exhibit E) and a letter signed a Nevada resident (Exhibit F).

Assemblyman Carpenter reminded the committee of previous extensive hearings on the subject and he felt one of the reasons the hearings were held was a case that came out of Elko and the Supreme Court decisions that followed. At that time they tried to do what they felt would be a fair to grandparents and everyone. He queried Ms. Berman if she had any input from family lawyers or court judges as to why the current statute was not working.

He thought NRS 125A.330 allowed grandparents the ability to go to court to present their case. Once grandparents got into court they had the right to ask for more visitations or custody depending on what was needed.

Ms. Berman said she sent the bill to all family court judges in Las Vegas to review and to submit problems they had. They replied they would be happy to implement the bill as it stood. She thought Victoria Riley, legislative representative, Nevada Trial Lawyers Association, could answer questions.

Chairman Anderson asked if the judges had responded in writing. Ms. Berman said by phone.

At that time Chairman Anderson asked Victoria Riley to present testimony even though she had not signed in. She said she had not intended to testify but the Nevada Trial Lawyers Association was supportive.

Mr. Carpenter felt if there were written responses available from the judges it would help clarify why or if the additional legislation was needed.

Mr. Anderson asked if visitations were established at the time of the separation or breakup of the family would it be more protective of the children than if a grandparent had to use the court system to obtain visitation rights. Mr. Fend responded relationships would be affected by such force and exacerbate what little connection existed.

If the problem could be solved earlier and guarantee the rights so someone did not have to go to court for enforcement, it would help the situation of the children much more than the grandparents and would ensure their ability to visit.

Mr. Carpenter said he understood and felt there were provisions in the current legislation to provide for that. He thought perhaps at the time of the breakup was the worst time for grandparents to demand their rights, but once things had cooled down it would be better.

Assemblywoman Buckley asked for clarification of section 1, line 6, regarding the deletion of "parents," why it was deleted and how it fit in with other statutes. The way she read the bill, section 1 continued to be permissive, the district court may grant a reasonable right of visitation if it was in the best interest of the child. In section 2, line 23, the standard was being changed, in those different situations it was mandatory.

Ms. Buckley said it had been brought to her attention one party would have the child for years with formalized custody or not. It could be a foster parent, Godparent, or a good friend of the parents. The parent returned and took the child although the guardians approved of the situation, they wanted to continue visitation with the child. The statute provided a gap by only allowing visitation to the parents or grandparents, and not to someone who had previous custody.

Ms. Buckley preferred discretionary versus mandatory and felt it was best for the child.

Ms. Berman thanked Ms. Buckley for her observation and said she would entertain an amendment to the bill to include other guardians.

Ms. Leslie requested Ms. Berman provide written documentation from the family courts stating their support of A.B. 436.

In answering Ms. Buckley’s question Ms. Lang said the parents to which they were actually referring were grandparents and they had removed grandparents from section 1, NRS 125A.330 and placed in section 2 with the reference of NRS 125A.340

Chairman Anderson questioned the establishment of paternity so grandparent rights could be established. He wondered if there was a legal responsibility for establishing paternity to establish grandparents rights, would living together be sufficient.

Ms. Lang said she did not know if paternity was addressed in the sections, but it seemed to have assumed the person was related. If there was a question of paternity the court would have to make determination. The bill dealt with people who were never married but had a child in common.

Because of the complexity, Ms. Berman asked Ms. Lang to handle the question of paternity and amend the grandparent section. Ms. Lang thought before the court could award custody, it would have to know if somebody challenged whether they were actually related. Ms. Lang was not sure it would have to be addressed in the statute.

Benjamin Blinn, concerned Nevada resident, said he supported the bill and agreed the question of paternity should be in the best interest of the child. He quoted scripture "she is a mother who mothers and he is a father who fathers." He wanted the discretion left to the court and what was best for the child was the number one priority rather than whose genes they had. Vital statistics often sealed documents for the best interest of the child and he supported the bill.

Mr. Anderson said that was why the court had a difficult time in those cases especially with the opening of cases previously sealed; which had extended the family boundary much broader than had once been anticipated with adoptions.

Mr. Anderson closed the hearing on A.B. 436 saying they would place the bill in a work session as soon as the requested documentation from the family court judges had been received.

Assemblyman Richards Perkins, representing Assembly District 23, said the families of murder victims had provided the proposed legislation A.B. 456. In domestic violence situations and domestic violence murders where one parent killed the other parent the bill would terminate the rights of that parent to their children.

He referred to section 7, the domestic violence area and third level presumption, "that it was not in the best interest of the child" to grant custody to the perpetrator if there was an act of domestic violence documented against the other parent.

Mr. Collins stated "Farrah Faucett" was his favorite actress. He proposed the scenario from one of her movies "The Burning Bed" where after being beaten for years she killed her husband. He wondered if one parent would hold over the other the fact if they killed them, they would lose custody of the children. He wondered if that would be the exception of the domestic violence clause.

Mr. Perkins said he never envisioned one parent sticking his tongue out at another and daring the spouse to kill him. Spousal abuse was an issue with which they had been dealing, and it was probably the issue of the 1990’s in law enforcement. There were a number of high profile situations where one spouse had killed another and the remaining spouse in detention still had custody of the children. Temporary custody would be awarded to family or friends but eventually the parent would be released from jail or prison and make decisions for the children. He felt the intent of the bill was to try to provide for those children.

It was a legal defense against first degree murder if "in a burning bed syndrome" one spouse was convicted of killing the other spouse. If a parent had not been convicted of first degree murder the termination of parental rights would not apply.

Chairman Anderson asked Ms. Lang to comment on the bill. Ms. Lang clarified the drafted language dealing with the domestic violence portion of the bill was currently in NRS 125.480, subsection 5, dealing with dissolution of marriage. The new language basically made it in the best interest of the child regardless of divorce or whether the people were ever married in the first place.

Mr. Carpenter questioned the fact nothing was mentioned in regard to termination of rights. He referred to section 2, line 5, subsection 1, "A court shall not enter an order awarding custody to or rights to visitation with the child to the parent so convicted, unless the child who is the subject of the order is of suitable age to signify his assent and assents to the order."

Ms. Lang referred to section 4, subsection 2, of the bill "if a parent of a child is convicted of murder of the first degree the other parent of the child, the parent is presumed to be an unfit parent." NRS Chapter 128.097 dealt with termination of parental rights and created a presumption that termination would be appropriate.

Mr. Carpenter referred to the above mentioned subsection 2 in which it stated "if the parent is presumed to be an unfit parent," would that be one of the modifiers to terminate parental rights.

Ms. Lang said that was correct, a parent had to be found unfit in order to have parental rights terminated.

Ms. Leslie felt she was lost in the language of the bill and her concern was to make sure they were protecting the situation in which someone had acted in self-defense or was it a gray area or they plead to a lower cause.

Ms. Lang disclosed the only type of murder that was absolute was first degree which was more than just a response, it would have to be perpetrated with an intent and a whole thought process of how to kill the person. Conviction under second degree murder or one of the other types of manslaughter would come under the domestic violence part where it would be "rebuttable presumption" so the court could still consider other factors.

Mr. Brower was curious regarding section 2, and section 6, the issue of the child’s ability to override order of the court regarding the custody issue. He wondered what was deemed to be suitable age.

Ms. Lang stated the language from section 2 and section 6 was taken from a State of Illinois statute. It was not language Nevada typically used. She thought the reason it was in the proposed legislation was to keep any constitutional problems from being raised and would allow the court to make a determination whether or not the child was of sufficient maturity to make that type of decision. As far as she knew there was no typical age or case law which discussed the age deemed suitable for those sorts of decisions in Nevada.

Mr. Perkins thanked Ms. Lang for her expertise regarding the bill.

Susan Meuschke, executive director, Nevada Network Against Domestic Violence with reservations testified in favor of the bill. She felt the issue of domestic violence was an issue that needed to be considered as they looked at any issues involving custody, termination of parental rights and child protective issues. However, there seemed to be some fairly definite language which had had already been discussed in the committee on other bills that not all cases followed exactly the same process.

Nevada Network Against Domestic Violence suggested paragraph 1, section 2, be amended to include "or there was a hearing to determine the best interest of the child." There could be someone who had been in an abusive relationship for a number of years, had suffered devastating physical, emotional, and psychological violence and still be convicted of first degree murder. It may not be in the best interest of the child to lose the other parent as well, and she thought the courts needed to be able to take into consideration some of those issues. She also believed the courts needed to bear in mind the issue of domestic violence and murder.

Ms. Meuschke did not have any suggested language for section 4, paragraph 2, but felt there needed to be an ability to rebut presumption "If a parent of a child is convicted of murder of the first degree of the other parent, the parent is presumed to be an unfit parent." She felt the court needed to pay particular attention to those cases.

In paragraph 1, section 6, Ms. Meuschke stated "the suitable age to signify his assent and assents to the order" the court would have the opportunity to have a hearing on the best interest of the child.

Ms. Meuschke further stated at the end of the paragraph where the bill talked about releasing a child although someone was in custody for first degree murder. She seriously doubted the court would be releasing a child to a person having been convicted for a number of years. She referred to section 6, subsection 2, which stated "Until the court makes a determination pursuant to subsection 1, no person may bring the child into the presence of the parent so convicted without the consent of the legal guardian or custodian of the child." She was concerned Child Protective Services had the ability to release the child into that parent’s custody if the court so ordered.

Chairman Anderson asked what would happen in the case where a parent was protecting the child from another parent, and in the course of that event killed the other parent. He pondered if the determination of the court would be whether that was justifiable, and therefore would not be first degree murder because the scenario would not hold up. He asked Ms. Lang if that seemed to be consistent with the law.

Ms. Lang said murder of the first degree was generally considered to be the most heinous type of murders.

Mr. Brower felt Chairman Anderson was correct. Generally in the type of crime discussed where a reaction to a domestic violence situation occurred, he felt it was not going to be first degree murder and may be a defensible case no matter what the charge.

Chairman Anderson told Ms. Meuschke he would like to make the argument for the other side but would stay away from why people stayed in domestic battery situations relative to financial support of the family and how compromised those relationships often became. "It kind of defies all of our understanding but the economic realities of life often make for poor choices" and he guessed it was most evident in the domestic relation area than any other.

Ms. Meuschke asked the Committee on Judiciary to look at the bill and think about the best interest of the child and not whether they thought what happened was right, wrong, or indifferent. She did not condone murder and certainly did not want children to have to be put in a bad place.

Chairman Anderson asked Ms. Meuschke to provide any written documentation or suggestions relative to the bill to the committee.

Chairman Anderson brought A.B. 456 back to committee and announced they would not proceed with the bill but would wait for additional testimony.

Chairman Anderson introduced a Bill Draft Request (BDR) from the Committee on Judiciary and said it would be heard in the Committee on Commerce and Labor.

• BDR 15-1114 – Increases penalty for certain crimes involving unauthorized, forged or counterfeit trademark or design. A.B. 616

Mr. Nolan requested he be recorded as voting in the affirmative on A.B. 410.

Ms. Leslie requested to be recorded as also voting in the affirmative on A.B. 410.

There being no further business the meeting was adjourned at 10:20 a.m.

RESPECTFULLY SUBMITTED:

Novella Watson-Lee,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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