The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, March 24, 1999. Chairman Bernie Anderson presided in Room 4100 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 Jan Evans, Assembly District 30

Assemblyman John Lee, Assembly District 3

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

After roll was called, Chairman Anderson opened the hearing on Assembly Bill 339.

Assemblywoman Jan Evans, Assembly District 30, came forward as the sponsor of A.B. 339. She introduced Victoria Van Meter, Family Court Master, Second Judicial District Court, as the primary proponent of the bill. She began her presentation by pointing out section 1 codified the current practice in Washoe, Clark, and Elko Counties where masters and commissioners heard substantially all matters involving protection orders against domestic violence. The involvement of masters benefited both applicants and respondents. They provided more immediate access to the courts than would be available if all domestic violence cases were added to the existing caseload of district judges in the family court division. Ms. Evans explained section 4 also codified the practice of setting a hearing to extend a temporary protection order (TPO) at the time the original application for a TPO was issued. She explained that had been the practice since the inception of the protection order program in Washoe County. Ms. Evans elucidated domestic violence was not an isolated, individual event and often increased when the perpetrator believed the abused party had left or was about to leave the relationship. For that reason, it was critical the court be able to set extension hearings at the time of the original protection order if the applicant felt protection was going to be needed beyond the original 30-day period. Moreover, the setting of the extension date at that time would eliminate the need for an applicant to return to the courthouse. It would also give the respondent notice that he or she could appear and would have an opportunity to be heard. Referring to section 3, Ms. Evans noted by setting the extension hearing within 45 days of the request, the courts could afford respondents their due process rights without financially impacting the court system.

Victoria Van Meter, Family Court Master, Second Judicial District Court, said she was the judicial officer who dealt with the issues of domestic violence and TPOs. She explained in order for a TPO to be issued, an individual was required by statute to fill out an application explaining his or her reasons for the request. She read a few of the applicant’s statements, which related horrible situations involving both mental and physical abuse. She noted the court issued approximately 15 to 20 TPOs against domestic violence. Ms. Van Meter stated A.B. 339 would remove an unnecessary barrier when a victim of domestic violence sought a TPO. Some individuals would wait to see if the situation improved, but for the vast majority, A.B. 339 might aid them in making the choice to leave an abusive relationship. It would allow them the opportunity to have the protection order extended within 45 days of the original TPO which would then be in effect for 1 year. The respondent in the case would also be given a date certain to appear. Currently statute did not provide for a date certain by which the hearing must be set. She reiterated the bill would save the applicant another trip back to the courthouse as well as aid the court in regard to serving the respondent with notice of the extension hearing. That was problematic because the TPO required them to be removed from the home and their location became more difficult to track. Ms. Van Meter explained another provision of the bill, which was current practice in Washoe County, was to set a hearing in order to address any motion to contest the protection order within 10 days. Concluding her presentation, she pointed out one modification she would like to make. In section 1, line 3 after the word "modify", she suggested the word "enforce" be added. That would better reflect the work of the masters.

Risa Lang, Committee Counsel, confirmed that would not be a problem as long as there were actions to enforce.

The Honorable Scott Jordan, Family Court Judge for the Second Judicial District Court in Washoe County, testified in favor of A.B. 339. He explained to the committee before his current position, he heard orders for protection against domestic violence on almost a full-time basis as a court master. He told the committee the domestic violence protection order program had begun in Washoe County in 1987. Since that time, the Second Judicial District Court had followed all of the procedures that were set forth in A.B. 339. He confirmed the bill included specific language to authorize the current practice which he believed the court had authority to do under their inherent powers. Judge Jordan stated there were a total of three family court judges in Washoe County. In addition, there were two full-time masters who did nothing but process protection orders. He declared the work could not get done without the work of the masters. He further explained Washoe, Clark, and Elko were the only three counties in the State of Nevada which issued their protection orders at the district court level. By statute, the rural counties handled their protection order programs through the justices of the peace. He told the committee the bill was discussed with the master from Clark County as well as a number of the Clark County family court judges and while there was no formal resolution supporting the legislation, everyone with whom he had spoken was in favor of A.B. 339. It permitted them to continue the job in the way they found was the most effective. Judge Jordan urged the committee’s support.

Assemblyman Carpenter asked for clarification in regard to the 45-day proposal for an extension hearing. Ms. Van Meter replied the current statute allowed for a TPO to be in effect for 30 days. For those applicants who knew 30 days would not protect them, they could apply for an extension. She stated the 15-day period was necessitated by money. The 45 day proposal was practical and she believed could be done with the limited judicial resources.

Mr. Carpenter further inquired why the extension hearing could not be done within the 30 days provided by the original TPO. He believed 15 days allowed for too much "wiggle room for bad things to happen". Ms. Van Meter responded the protection order remained in effect pending that extension hearing and hopefully, the hearing could sometimes be set before the 45 days.

Judge Jordan echoed Ms. Van Meter’s comments. He also briefly explained what occurred at the extension hearings. He stated they were similar to a divorce hearing. The masters addressed issues of child custody and child support. They set up visitation schedules so children could have access to both parents in the safest possible way. They addressed things such as which party would live in the home, and who would keep the family car. Many times those hearings addressed complex issues which took time to resolve. Judge Jordan opined by shortening the time, a disservice could be done to both parties and the children by not allowing those important issues to be fully addressed.

Joni Kaiser, Executive Director of the Committee to Aid Abused Women, testified in support of A.B. 339. She stated it put into statute what currently happened, particularly in Washoe and Clark County.

Sue Meuschke, Executive Director of the Nevada Network Against Domestic Violence, stated she also supported A.B. 339.

Chairman Anderson made reference to a letter expressing support of A.B. 339. The letter from Nancy Hart, Deputy Attorney General, on behalf of the Attorney General’s Office, was distributed to the committee and attached as Exhibit C.

Beverly Salhanick, Nevada Trial Lawyers Association (NTLA), spoke in favor of the bill. She indicated the only concern of the NTLA was the application for an extended order could be made at the end of the 30-day period. If that occurred and a second hearing on the extended order was not heard until the end of the 45-day period, a 75-day temporary order would be created. She believed if the order was not obtained in good faith, potential harm could be caused for the accused aggressor. Aside from that concern, she commended those for bringing the bill forward.

Valerie Cooney, Nevada Trial Lawyers Association, applauded the bill for its recognition of the value of the master system. She also spoke in favor of the provision that mandated an extension hearing be held within 45 days if made at the same time as the original TPO. She opined in some cases, that might actually result in an expedited process.

John Morrow, Washoe County Public Defenders Office, indicated defense attorneys had expressed a couple of concerns in regard to A.B. 339. He first pointed out the proposal made in section 1 might not meet constitutional muster. He remarked writs were being heard by the Supreme Court in which the whole master system and its application were being questioned on a constitutional basis. Decisions were pending. He also echoed the concern previously expressed by Ms. Salhanick whereby a 75-day period was created by a last minute application for an extension. The respondent could be out of touch with the children, removed from the house, his car taken away, and yet forced to make mortgage payments for a place in which he was not living. Mr. Morrow opined, "I think that is mischief that can be applied maliciously by persons who have less than pure motives when they are exercising the TPO system." He drew the committee’s attention to his proposed amendments, which were attached as Exhibit D. He pointed out one of his suggestions would be to hold the hearing on the order for extension within 5 days of the date of service on the respondent. He recognized the validity of Master Van Meter’s comment about problems with finding respondents based on his experience at the public defender’s office. However, he noted as in many other proceedings, it was possible to have a default entered if a person was noticed up front that they needed to make themselves available for service so that they could be noticed on the extension order hearing if it ever became necessary. He believed it was not an insurmountable problem and his suggestions would help get those things resolved more quickly than the extended timeframe being considered.

Chairman Anderson and Mr. Morrow discussed the application process and related timelines in more detail.

Assemblyman Collins expressed concern with the "larger problem" occurring between the couple. He pondered what could be done to help a couple in that situation. Mr. Morrow noted it was his perception "Unfortunately, by the time people get into the domestic violence courts, they are beyond the stage of counseling." He agreed with Mr. Collins in that it would be ideal to defuse whatever violent emotions were involved on both sides. He commented that could occur with counseling not aimed so much at resolution of the relationship problems but aimed at the inner person resolving their anger, but as far as the court was concerned, he did not know of any similar mechanism. As far as mandatory anger management counseling and other things of that nature, a mechanism was available but only through the criminal system.

There being no one else wishing to testify on A.B. 339, the Chair closed the hearing. He stated he would entertain a motion to amend and do pass. He clarified the amendment was to add the word "enforce" within line 3 of section 1, to allow the enforcement powers to be added to the master’s ability. He also reiterated the issue of a 45-day maximum cap, which was Mr. Carpenter’s concern, and that the temporary restraining orders be set in such a way that it fit within the 45-day window. If the bill needed to be further modified in some way to meet those kind of requirements, it might place an increased burden on the masters to try to hear an expedited program.

ASSEMBLYWOMAN MCCLAIN MOVED AMEND AND DO PASS ON A.B. 339.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

Mr. Carpenter clarified the temporary order could be extended beyond the 30 days until there was a hearing on the extended order but not to exceed 45 days.

THE MOTION CARRIED UNANIMOUSLY.

The hearing was opened on Assembly Bill 545.

Morgan Baumgartner, Legislative Representative for R & R Advertising, spoke on behalf of the Nevada Court Reporter’s Association. She introduced two members of the association, Karen Yates, President of the Association, and Barbara Johnson, who were there to answer any questions the committee had and then reviewed the three primary concepts of A.B. 545. The first concept involved an increase in the fees for the court reporters who worked in the justice and district courts. Ms. Baumgartner noted all the fees were set by statute and while a similar request had been made in 1995, it had been approximately 10 to 12 years since the fees had been increased. The bill as drafted contained a 10 percent increase. She drew the committee’s attention to a list of amendments which had been distributed to the members (Exhibit E). Referring to the first amendment on the list, she explained it would change the fees to round numbers. Thus, the per diem fee would decrease from $154 to $150. The hourly fee would increase from $33 to $35 and the fee per page would decrease from $3.58 to $3.55. Those changes would make it easier for the courts from an accounting perspective. She noted that section of the bill would have a mandatory impact on the budgets of the district and justice courts. The second part of the bill dealt with the practice of requesting an expedited transcript. An attorney or the judge could request a transcript be produced in a shorter time period; either 24 hours, 48 hours, or within 4 days. The fees would compensate the court reporter because the reporter would most likely miss a day of reporting in court to produce the transcript on an expedited basis. Those fees were discretionary and the court would only be responsible for the fees if they ordered the expedited transcript. Otherwise, the parties to the action who requested it would bear the burden of the cost. The third concept of A.B. 545 dealt with a fee schedule associated with a new technology referred to as "real time reporting". In that situation, as the court reporter transcribed, the words spoken immediately appeared on a computer on the attorney’s desk. Referring to the last amendment of Exhibit E, Ms. Baumgartner explained it would prevent the courts from being double charged in a circumstance when more than one reporter was required in the criminal setting. The way the bill was currently written, the court would be subject to paying the expedited fees. In conclusion, she noted Clark, Washoe, and Elko Counties had consented to A.B. 545.

Ms. Buckley disclosed she was an attorney and ordered transcripts from court reporters. Assemblywoman Ohrenschall and Assemblyman Brower made the same disclosure. Ms. Buckley also disclosed she was the director of a nonprofit legal corporation who was subject to the provision on page 2, lines 15 through 26, but it would not affect her personally or differently than any other lawyer.

In response to an inquiry made by Assemblyman Manendo, Ms. Yates replied court reporters working in Nevada district court were traditionally per diem reporters and did not earn their living day-by-day in the same court. She was uncertain of the impact A.B. 545 would have on a reporter’s annual salary.

Ms. Baumgartner clarified amendments three, four, and five were reflective of the changes made to the per page fee rather than for accounting purposes. The reason for the paragraph was to provide for expedited transcripts. She also clarified the per page rate for an expedited transcript would be $3.55 per page.

Chairman Anderson closed the hearing on A.B. 545 and stated he would entertain a motion.

Chairman Anderson assigned the bill to Mr. Brower for presentation on the Assembly Floor and opened the hearing on Assembly Bill 282.

Assemblyman John Lee, Assembly District 3, began his presentation by drawing the committee’s attention to a copy of the Nevada Revised Statutes (NRS) associated with A.B. 282. The handout was attached as Exhibit F. He explained A.B. 282 was an attempt to keep children from being negatively impacted or exposed to advertising distributed by adult-orientated businesses. Mr. Lee emphasized he was not trying to outlaw any adult publications, adult bookstores, or any commerce those businesses currently practiced. The intent of the bill was to keep their explicit advertisements from children. Pamphlets were distributed to the committee that were taken off the corner of Vegas Drive and Rancho, a residential area in Las Vegas. The pamphlets appeared on the strip, and they were now permeating the residential areas. Proceeding to review the bill, he drew the committee’s attention to the language "opaque covering". He showed the committee two posterboards. One showed a woman’s breasts and genitalia covered with an opaque covering and the other showed the current practice. He stated, "I am not asking for a lot. I am just asking for the breast to be covered." He explained he owned a business at 1731 North Rancho where once in a while his children helped clean up leaves and papers from the property. He commented before they did that, he had to first remove those advertisements from the side of the building and the fence where they get stuck. Mr. Lee also remarked children had free access to those pamphlets from newsracks and vending machines. There were vending machines which distributed magazines such as Swingers magazine, but now different magazines such as Hustler magazine were being distributed. They were also located in more obvious places. The second part of the bill addressed access to those machines. Mr. Lee proposed a procedure be established which would include a person over the age of 18 being present to make sure children were not using the machines.

Mr. Collins noted that had been an issue in southern Nevada for many years. He agreed with the intent of the bill but was concerned with constitutional violations.

Paul Larsen, an attorney with Lionel, Sawyer & Collins representing the Nevada Resort Association, came forward to address the constitutional right of free speech. He reiterated A.B. 282 was an attempt to impose a control on how those pamphlets were displayed and distributed in order to facilitate access to their intended audience without facilitating access to their unintended audience being minors. There was no prohibition on the content that individual advertisers and businesses would include. Mr. Larsen informed the committee A.B. 282 was not precedent setting legislation. He made note of a Ninth Circuit Court of Appeals case called Crawford v. Lundgren. The Crawford case dealt with a similar situation in which adult publications were being distributed on sidewalks resulting in a similar control put on newsracks. After a review, the Ninth Circuit Court of Appeals decided given the secondary effects of distributing material harmful to minors in such an open way, there was no way to correct the situation other than to implement the controls proposed in A.B. 282. Mr. Larsen stated in a similar case, Clark County prevailed in litigation which addressed newsracks. A control was put in place whereby if there was any kind of nudity or sexual conduct depicted in advertisements, it had to be fully covered by the front of the newsrack. It withstood a constitutional challenge. Mr. Larsen commented the Nevada Resort Association (NRA) had received numerous complaints over the years about the contents of those publications and their distribution on the strip. He stated the NRA supported tighter control of the pamphlets and urged the committee to pass the bill.

In response to an inquiry by Assemblywoman Angle, Mr. Larsen replied currently, to display a pamphlet, such as Exhibit G, in such a way that children could see it was prohibited. Accessibility could be controlled by means of a token-operated rack instead of a coin. The distribution of tokens would be controlled to ensure the person obtaining the token was a person over 18 years of age rather than a kid with a coin in their pocket. Another option was to have a specifically segregated part of a business where the material was being displayed. That would allow nude kinds of magazines to be distributed, but access to them would be restricted.

Mr. Collins asked for more information about the tokens and or cards used to obtain the magazines. Mr. Larsen clarified A.B. 282 did not mandate the method of restriction but merely suggested a couple of ways that it could be facilitated. One way was the use of tokens or a card for access to the vending machines and another possibility was to use a segregated area. It would be up to the individual vendor to decide what was the most practicable way for them.

Ben Graham, Legislative Representative for the Nevada District Attorney’s Association, specifically the Clark County District Attorney’s Office, testified in support of A.B. 282. He commented on the overwhelming number of complaints he received about the availability of the magazines. He told the committee he worked on a daily basis with the civil division who attempted to research and craft laws that were constitutionally sound in an effort to not eliminate but to abate the nuisance situation of that type of product.

Stan Olsen, a Lieutenant with the Las Vegas Metropolitan Police Department, told the committee his officers were being challenged on that issue multiple times every day. He noted the people who passed out the pamphlets could be quite aggressive. He expressed support for the proposed legislation and believed it to be a step in the right direction.

Lucille Lusk, representing Nevada Concerned Citizens, testified in favor of A.B. 282. She noted it recognized "the right and duty of the adult society to protect our children in our own neighborhoods from a pervasive societal ill with no negative consequences."

Steve George spoke on behalf of the Las Vegas City Attorney’s Office and expressed strong support of A.B. 282. He believed adoption of the bill would increase our ability to effectively accomplish the goals and objectives that would make our community a better place to live. He stated in recent years, dealing with the distribution of the materials described in the bill had become increasingly problematic. His office had received phone calls from concerned citizens who had eye witnessed minors abusing the free access to the vending machines. After reviewing the content of the bill, he believed it was very well drafted and completely and entirely within the discretion of the law. Mr. George reiterated passage of the bill would increase the quality of life for the citizenry as well as provide a protection for the children.

Randy Bulloch, a private citizen, explained he was in the construction business in Las Vegas. He remarked the construction sites were continually littered by the embarrassing literature. Over the years, he had spoken with numerous authorities and there was a common feeling of frustration because of the first amendment protection that was afforded that kind of material. He had been introduced to an organization called the National Coalition for the Protection of Families and Children. They informed him of Crawford v. Lundgren which led him to come forward to support Mr. Lee’s legislation. A copy of that case was attached as Exhibit H. Referring to the first paragraph, he quoted "The court of appeals affirms the judgment of the district court. The court held that California’s newsrack statute which bans the sale of harmful matter in unsupervised sidewalk vending machines does not violate the first amendment." Mr. Bulloch opined children could be protected from being exposed to that type of material. He commented pornography was highly addictive. People became desensitized and ended up craving progressively harder and courser material. He also believed, "Thought is father to the deed and we have a great tendency to translate our thoughts into actions." He explained there had been studies that indicated pornography had a great influence on society. It promoted violent crimes against women, teenage pregnancy, suicide, drug abuse, broken marriages, and broken lives. Mr. Bulloch urged the committee to support A.B. 282.

Chris Jensen, a private citizen from Las Vegas, testified in support of A.B. 282. She told the committee she had experienced exposure to those pamphlets while with her children. She emphasized the bill did not prohibit distribution of the material but merely protected the unintended audience. She also urged the committee’s support.

Leo Knell, private citizen, stated he supported A.B. 282 and echoed the hopes it would keep the material away from children who would be influenced by such distribution.

Mr. Anderson brought attention to written testimony he received from Pam Reese which expressed concern the bill was too narrow. She expressed concern with the proliferation of explicit content in other kinds of materials, particularly with marketing of compact discs. She noted there was music available which seemed to promote murder, necrophilia, gang propaganda, racial slurs, obscene language, and guns. She suggested broadening the bill to address those issues as well. Her testimony was attached as Exhibit I.

John Cummings, came forward in opposition to A.B. 282. He drew attention to a letter from Allen Lichenstein and proceeded to read it for the record. The letter was attached as Exhibit J and articulated Mr. Lichenstein’s belief the bill would not pass constitutional scrutiny. Mr. Cummings stated protection of minors from obscene material was needed but it would not be accomplished by the passage of A.B. 282. For it to be effective, the language would need to be tightened up with careful scrutiny.

In reply to a question by Chairman Manendo, Mr. Cummings stated he did not have any proposed language to submit as an amendment.

There being no further testimony on A.B. 282, the Chair closed the hearing. Mr. Anderson resumed the position of Chairman and stated his intent to attempt to resolve some of the concerns raised. He opened the hearing on Assembly Bill 400.

Assemblyman John Lee explained in the 1997 session, there were changes made to the probate law in Nevada and since that time, work had continued. A.B. 400 represented 18 months of work and was a bill that would move Nevada into the mainstream with other states using the uniform probate code as a guide.

R. Gardner Jolley, an attorney with Jolley, Urga, Wirth & Woodbury, explained a probate revision committee was created at the end of the 1997 session. The committee was made up of seven people; two of whom were lay persons, one was Jared Shafer, the Public Administrator from Clark County, and another was Mary Mosley, the Assistant County Clerk. Mr. Jolley stated Ms. Mosley had been defeated in the election, but he had kept in contact with the present clerk, Shirley Parraguirre. Various attorneys also participated on the revision committee so there was input on small and large estates, large trusts, and from people who had been under the uniform probate code in other states. He explained certain amendments had been proposed to the bill as written, but they were mainly technical changes. He had also spoken with Sheila Smith of the Attorney General’s Office regarding certain provisions the welfare department would like to make, and there were no objections. He noted there was a possibility of putting those amendments into another bill. Mr. Jolley invited any attorneys, any bankers, and the public at large to make any suggested changes which might possibly be addressed in the 2001 legislature. Referring to a handout distributed to the committee members, he explained the purpose behind A.B. 400. The handout was attached as Exhibit K. He explained because it was so technical in many areas, the revision committee tried to simplify and expedite the process. Definitions were placed at the beginning so they could be easily accessed. Many unnecessary technicalities were eliminated as well as statutes that were gender biased being geared solely to women’s rights. They made it clear they were gender neutral. They also limited the right of murderers to recover and changed the notice requirements to make them easier and to ensure all heirs, beneficiaries, and other people interested in the estate received notice.

Mark Solomon, an attorney and member of the probate revision committee, gave a brief explanation of the proposed amendments. The amendments were attached as Exhibit L. He reiterated most of the amendments submitted were quite technical and were to realign the proper citations. A few of the other changes clarified certain terms of art used probate. He added the Attorney General’s Office had informed them of another bill which amended chapter 147.070 of the Nevada Revised Statutes. Mr. Solomon stated there was no objection being he did not believe it would pose any type of inconsistency.

Don Ashworth, Probate Commissioner for the Eighth Judicial District Court, said he also sat on the committee that drafted the legislation. He pointed out the bill was not the uniform probate code. The revision committee reviewed every section and looked to the uniform probate code as well as the codes of other states that were contiguous to Nevada. He opined A.B. 400 brought into fruition the best of all worlds.

Mr. Ashworth stated Jared E. Shafer, Clark County Public Administrator, was not present but indicated his support of A.B. 400.

Sheila Smith, Deputy Attorney General representing the Nevada State Welfare Division and specifically the Medicaid Estate Recovery Program, informed the committee that another bill which contained two small provisions addressed in A.B. 400 would be heard by the committee on health and human services.

Chairman Anderson closed the hearing on A.B. 400 and stated he would entertain a motion.

ASSEMBLYWOMAN BUCKLEY MOVED AMEND AND DO PASS A.B. 400.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson stated Mr. Lee would present A.B. 400 to the Assembly Floor. He then asked for a memorandum from Scott Young, Principal Research Analyst of the Legislative Counsel Bureau, to be distributed to the committee. The memo addressed various questions asked by the committee in previous meetings. The memorandum was attached as Exhibit M.

Chairman Anderson announced the committee would be meeting on Saturday, March 27, and reviewed the bills to be heard. There being no further business before the committee, he adjourned the meeting at 10:50 a.m.

RESPECTFULLY SUBMITTED:

Jennifer Carnahan,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: