The Committee on Judiciary was called to order at 8:15 a.m., on Tuesday, April 6, 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

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson opened the hearing on A.B. 519.

Dan Coppa, chairman, Nevada Juvenile Justice Commission, read from a prepared statement (Exhibit C), expressing their support for A.B. 519. The document contained a summary of the bill and a disadvantage to the bill. It also mentioned what the impact of the bill would be in regard to creating a general fund obligation for salary and expenses for the deputy administrator for youth corrections and concluded the bill proposed a shift of focus for youth corrections.

Leonard Pugh, director, Washoe County Department of Juvenile Services, stated he was president of the Nevada Association of Juvenile Justice Administrators. He read a letter to the committee in support of A.B. 519 from District Court Judges Deborah Schumacher, Charles M. McGee, and Scott T. Jordan, from the Second Judicial District Court (Exhibit D).

Mr. Pugh read from a prepared statement (Exhibit E) indicating the association supported the bill and welcomed the renewed emphasis on juvenile justice.

Kirby L. Burgess, director, Clark County Department of Youth Services, opened his testimony by stating he was also in support of A.B. 519. He explained for the last 3 or 4 years throughout the state, juvenile justice professionals were not only county professionals and judges but were state officials as well. They came together to work on the juvenile justice system in terms of how they could define how the system coordinated their services. He noted there was better communication among the departments and they understood they needed to depend upon each other.

Mr. Burgess stressed the system had a great challenge ahead of it including the overcrowding in the juvenile facilities. He called attention to the support they had received from the legislature by pointing out the 100 bed facility being constructed in Clark County as a prime example. He conceded there were still some outstanding issues. The juvenile detention facilities were constantly overcrowded and pointed out the facility in Clark County was designed for 112 beds and they typically had over 200 juveniles in the facility each day.

Mr. Burgess concluded his testimony by stating they were seeing more juveniles who were violent, were drug users, committed a variety of crimes, and had gun charges against them. He indicated they needed additional focus on the problems so they could move forward to the solutions and one of those would be the creation of the deputy administrative position. The position would allow them to coordinate the services for the juvenile justice system and he urged the committee to support the bill.

Chairman Anderson commented the bill was in a "skeleton form" meaning it needed to be filled out in terms of its overall development because it was adding changes to the Division of Child and Family Services (DCFS) and the Department of Human Resources. He noted the committee had heard a report from Assemblywoman Jan Evans relative to the growing criminal problems of juveniles. It was a recommendation from her committee there should not be too many changes made in terms of criminal statutes, but they should be looking at the procedural methods of treating the overall problem. He thought A.B. 519 would fall into "synch" when the committee looked at the overall question of juvenile services.

Assemblyman Carpenter questioned if the bill would affect the youth training center in Elko. Mr. Coppa responded it would affect the superintendents in terms of the appointment process, and it would affect a change in terms of contractual work that the current superintendents did; however, as far as the maintenance, the operation, and living on the premises was concerned, those would remain the same. He noted the only area where there might be diminished activity for the superintendent would be contracting with school districts or with schools of higher learning and any other federal contracts. It would place that position below the deputy administrator’s role in the division of child and family services.

Mr. Carpenter asked if there would still be a superintendent and Mr. Coppa responded affirmatively, but the reporting system would change in which the superintendent would report to the deputy administrator instead of the present administrator.

For clarification, Assemblywoman Leslie queried if they were looking to add an additional position to whom the superintendents would report, and they would not be removing any of the responsibilities of the supervisors at the different youth training centers. Mr. Coppa replied there would not be any removals or replacements of any of the supervisors.

Chairman Anderson explained currently there were three individuals in DCFS and the Department of Human Resources who were deputies, and the bill would create a fourth position.

Ms. Leslie asked if they would be funding the new position through the state general fund or would they be using the office of juvenile justice and delinquency prevention funds, which otherwise would be used in programs. Mr. Coppa responded they would recommend the salary and benefits be provided out of the general fund.

Ms. Leslie referred to section 11, found on page 6 of the bill, regarding the director administering a program designed to educate the residents of each center about the problems caused by the abuse of alcohol and other drugs. She stated an interim committee had examined the issue of educating juveniles about drugs and classes given at the training centers, and she wondered if they were looking to bring it to an intervention level. She pointed out some juveniles arrived at the training centers with very serious drug problems, and she was concerned it was just talk about giving classes instead of providing any intervention treatment.

Mr. Burgess responded that he agreed with Ms. Leslie, and referred to a study he had seen that showed youngsters in state institutions had previous involvement with drugs and alcohol. It was a very serious and prevalent problem. He thought more should be done also.

Mr. Pugh interjected he agreed more intervention was needed.

Chairman Anderson explained he had chaired the study to which she referred, and the reality was there never seemed to be enough money to carry out a strong, effective program.

Ms. Leslie reiterated her concern over the word "educate" in the bill because it looked like something was being done, and it was her opinion intervention and treatment were not being done. She felt the word should be removed from the bill rather than pretend drug intervention was being provided to the juveniles.

Chairman Anderson replied the word needed to be in the bill because it sent a message the legislature was still concerned.

Assemblywoman Koivisto questioned if personnel from DCFS were contacted, and did they have input on the bill. Mr. Coppa responded they had been involved since early 1998 when the juvenile justice commission "tackled" the issue. He noted the director of DCFS and the commission’s juvenile specialist played an integral role in drafting the bill. As commission members division administrators they decided to move forward with the issue.

Mr. Carpenter referred to section 15, and questioned why subsection 2, regarding furnishings and appliances for the superintendent who lived on the premises had been deleted from the bill, and would it have an affect on the center trying to hire a new superintendent.

Larry Carter, juvenile justice specialist, Division of Child and Family Services, testified he had staffed the Nevada Juvenile Justice Commission, so he was very involved with the issue, including the public hearings to help develop recommendations for the current legislature. He referred to Mr. Carpenter’s question regarding furnishings at the training center in Elko and noted appliances and furnishings had been in the residence since 1960 and since the residence was completely rebuilt in 1987, none of the appliances were left. For that reason, he felt it was not necessary to have that language in the bill. It did not change the pattern or prerequisites currently in place for superintendents of either the Elko or Caliente training centers.

Mr. Carpenter questioned if the bill had any reference to the job being done by the current superintendents of both facilities. Mr. Carter replied none of the management responsibilities of the superintendent would be diminished. He repeated earlier testimony that the area affected was the contractual area of the job. He felt it would allow the deputy administrator to coordinate a better plan for all youth corrections in the state and prohibited isolated contracts that might not work for the best interest of the state. He called attention to the fact the bill was a collaboration of the members of DCFS, the governor’s office from the prior administration, and the juvenile justice commission.

Chairman Anderson closed the hearing on A.B. 519 and brought it back to committee.

Mr. Carpenter requested they hold off on voting on the bill until he made some calls and Chairman Anderson responded he intended to move on the bill during the hearing, so he wanted Mr. Carpenter to make the calls before he adjourned the meeting.

Chairman Anderson opened the hearing on A.B. 617.

Joan Cartlidge, deputy district attorney, Office of the District Attorney, Washoe County, testified A.B. 617 allowed for a more workable and effective means to criminally prosecute offenders. The bill was predicated on the problems and frustrations the district attorney’s offices experienced with the existing law. She noted there were so many problems, the law was never used or not used as often as it should have been. She pointed out the most important aspect of the new law was it eliminated the months of nonpayment of child support as a measure of the level of the crime. Months of nonpayment had become an unworkable timeframe because of the many federal enforcement mechanisms that interrupted the timeframes. Currently with the federal enforcement mechanisms they were allowed to collect some payments intermittently through Internal Revenue intercepts, wage withholdings, and new hire reporting, but it did not allow the timeframe of nonpayment as a measure for the level of the crime.

Ms. Cartlidge explained the new law clarified when a court had jurisdiction, which had not been done in the past. It made the crime a misdemeanor and provided for enhancement to a felony not only for repeat offenders but also for individuals with large arrearages. She indicated the bill also clarified what was a defense or a lawful excuse and what was not. It reduced the investigative manpower by establishing the inability to pay as an affirmative defense.

Ms. Cartlidge referred to section 1, explaining it was the section that established the affirmative defense, which required a defendant to provide information to the prosecution if there was a lawful reason for not paying child support. She urged the committee to not remove section 1, subsection 1, (a) and (b) because they were an integral part of the affirmative defense provision and if the section were eliminated, it would allow more vague and ambiguous provisions to be enacted. It clarified what was not an acceptable defense and without them, the defendant could use any excuse for a defense.

Ms. Cartlidge called attention to a recent Ninth Circuit Court case, the U.S. versus Ballek, which was a March 1999 case that addressed the voluntary unemployment and underemployment situation and said those were not a defense. She read excerpts from the law which indicated it was just as much a violation of the law for a noncustodial parent to fail to pay child support in which the refusal to work was motivated by sloth, a change of lifestyle, or the pursuit of new career objectives. The law also pointed out a parent with a minor child at home could not quit work or go back to school whenever he or she felt like it. A parent who was subject to an order for child support must seek a modification of the order before making a lifestyle change. She reiterated section 1 of the bill would clarify the law, save court time, and would give direction for jury instructions. She stressed it would also prevent decisions based on sympathy and not on the law.

Chairman Anderson questioned in order to devise an affirmative defense would a person have to contact the district attorney’s office every time there was a job change.

Ms. Cartlidge responded, the bill did not prevent a person from changing jobs, but it did prevent a person from changing jobs in order to avoid making child support payments. The law provided for a cap on child support of $500 per month per child, so it would not make a big difference if there was a job change because the maximum would still need to be paid based on their income. If a new job greatly decreased their income, the parent would be obligated to return to family court and change the court order.

Chairman Anderson agreed with the concept that a parent had the responsibility to pay for the child’s continued support. He questioned what would happen if a parent entered into a risky business not knowing if it would be successful, and did not have sufficient funds to make the child support payments for a few years until the business was either successful or it failed.

Ms. Cartlidge thought that issue was addressed in the Ninth Circuit Court decision that a person’s life choices were limited when a person had children. A person could start a business, but he or she still had to have the means to support the child.

Madelyn Shipman, legislative representative, Office of the District Attorney, Washoe County, reiterated the maximum child support payment in Nevada was $500 per month. With two children under the 25 percent formula, it would be $1000 per month or $12,000 per year, so anybody earning over $48,000 would benefit because they were only paying $500 per month per child. She pointed out a person could drop their earnings from $100,000 to $48,000 and there would not be a significant change in the child support obligation.

Addressing the issue of criminal nonsupport, Ms. Shipman indicated the issue of unemployment or underemployment was a small tool to use against somebody who had never paid any child support payments or totally avoided their obligation. She stressed they did not pursue criminal nonsupport unless there was absolutely no alternative.

Referring to section 1, lines 13 through 15, Assemblywoman Buckley commented she understood a person should not be allowed to accrue debt on credit cards to avoid child support payments, but the way the provision was phrased regarding indebtedness or other legal obligations, she felt the court should be allowed to consider those elements as part of the defense.

Ms. Shipman thought the language in the bill regarding other legal obligations was intended for future children who would need support, but she conceded they would have to look at the language because it would be a legal defense.

Ms. Buckley questioned if the defendant would need an attorney to file a written notice required to tender an affirmative defense and Ms. Cartlidge responded that was correct. She noted in a misdemeanor setting they might not have an attorney, but in the felony setting they would have an attorney.

Ms. Buckley stated she wanted to be sure somebody did not lose the proper affirmative defense by failing to know the procedural requirements. She asked how a person would know in the misdemeanor setting, they had to follow the procedural step of filing the written notice. Ms. Cartlidge thought there would be public defenders involved at the misdemeanor level because the district attorney’s office was required to notify the courts they were seeking jail time on a misdemeanor offense or suspended sentences in which jail time would be imposed if certain conditions were not met.

Ms. Buckley felt her concerns were not met by the prior explanation because her main concern was if somebody was seeking a misdemeanor with no jail time, would they know they had to file the written notice.

Ms. Shipman responded any mention of jail time "triggers" the public defender even in a misdemeanor, but she conceded that might not be the case throughout the state. She thought something could be changed to require the person be told about the notice when they were first arrested.

Ms. Buckley suggested the language should be changed in section 1, subsection 2 to add the new language the prosecuting attorney should give notice.

Assemblyman Nolan questioned whether the bill provided for the custodial parent to petition the courts to prevent somebody from making a career move which could decrease the amount of child support for a period of time until he or she could make career advancements. Ms. Cartlidge replied the amount of child support was based upon the noncustodial parent’s income and the custodial parent could not petition the court to prevent somebody from changing their life situation. There was a circumstance when an income could be imputed to a person if the court found the person was voluntarily unemployed or underemployed. The court could impute income to the person if they felt the person had the ability to make a certain amount of income.

For clarification, Mr. Nolan questioned if the custodial parent, through an attorney, could petition the court because he or she felt the child support was going to be reduced because the noncustodial parent was looking for a career change.

Susan Hallahan, chief deputy district attorney, Child Support Division, Office of the District Attorney, Washoe County, explained she handled the civil part of child support enforcement. She responded the noncustodial parent, through the civil arena in family court, could make a motion to reduce the child support if he or she wanted to take a step backwards before he or she could move forward. The custodial parent may respond the reason for the one step backward was to avoid paying child support. If the burden of proof was met, then the court could impute the noncustodial parent’s income, but it was very difficult to prove in family court. She reiterated the step could be taken backwards if it was not for the purpose of avoiding child support.

Mr. Nolan questioned what the timeframe was from when the petition was filed to the resolution. Ms. Hallahan responded if it was through the district attorney’s office in Washoe County, the motion to modify was filed either through a private attorney or with the assistance of the district attorney’s office. She pointed out the office would assist custodial and noncustodial parents. Once the motion to modify had been filed in family court, it was a 30 to 45-day period to get it before the court master for a hearing, followed by a 10-day appeal period before the district court.

Ms. Cartlidge referred to section 1, subsection 2 (a), regarding a detailed description of the factual basis for the affirmative defense must be included in the written notice by the defendant. She felt it was an important provision because it allowed everybody to be "on the same page." If there was a legitimate defense it should be laid out, and it would likely avoid a trial. The process was a search for the truth and removing the provision would allow for "game playing and sand bagging" a trial.

Chairman Anderson referred to hearings during the 69^th Session of the legislature regarding family court operations and the difficulty of trying to obtain modification of orders because of changes in circumstances. He pointed out one of the continuing complaints was the amount of money sent to the custodial parent was not reaching the children, but was being used by the custodial parent for personal things in their life. There were requests by noncustodial parents for a detailed accounting of how the money was being spent. If the committee was going to look for detailed descriptions of the factual basis for affirmative defense as stated in the bill, he questioned why there was not a provision for the custodial parent to make some type of detailed disclosure.

Ms. Shipman responded that issue was raised in the interim committee, but the bill did not attempt to address the issue. She pointed out the continuing obligation on the part of both parties under the bill was related to the actual charge presented against the noncustodial parent for nonpayment of child support.

Chairman Anderson questioned why the noncustodial parent had to disclose all assets and had to prove the ability to pay in order to change the obligation, but the custodial parent was not required to disclose anything.

Ms. Shipman conceded the law did not make provisions for financial situations as it was currently written. The issue in A.B. 617 had nothing to do with the establishment or setting of a child support obligation, which would be the only situation where a court could look at relative financial situations. She reiterated the bill addressed the failure of one parent to meet the obligation to pay.

Ms. Hallahan commented it was not an element of the crime of nonpayment of child support to prove the child support that was supposed to be paid was spent on the child. It was not applicable in the civil or criminal arena and that was why it was not in the bill.

Referring to section 3, subsection 2 (a) and (b), Ms. Cartlidge called attention to the word "or" stating it was very important to their office and for the bill because it made the two provisions separate and distinct. She stressed changing the word to "and" was not an option because the district attorney’s office did not extradite people on misdemeanors. She noted many of the defendants did not reside in the state and therefore, they would never be subject to prosecution for a felony or a misdemeanor if the word was changed, and it would allow a person to avoid paying child support for many months or even years.

Ms. Cartlidge distributed copies of a proposed amendment (Exhibit F) which added additional language to section 3, subsection 2 (b). She explained it allowed for the prosecution of a felony when the $5,000 had been amassed and it eliminated the statute of limitations problems. She indicated there was a 3-year statute of limitation for a felony, and depending upon what the monthly child support obligation was, it could take over 3 years to amass that amount of arrearages.

Bobbie Gang, lobbyist, Nevada Women’s Lobby, asked for the committee’s support of A.B. 617 because it represented very real problems families experienced when attempting to collect child support payments.

John Morrow, chief deputy, Washoe County Public Defender’s Office, indicated he had proposed an extensive amendment to A.B. 617 (Exhibit G). He pointed out it was important to realize it was not an issue as far as the mechanisms of child support were concerned. The law was only activated at the point when there had been an egregious failure to pay and one that should be punished criminally.

Mr. Morrow read the proposed amendments (Exhibit G) and asked the committee for comments.

Chairman Anderson contended the issue with which they were dealing was attempting to locate the individual who was the noncustodial parent to make sure the child support was paid.

Mr. Morrow responded the provision in the proposed amendment was not a notification of where the defendant could be found, but it was where the witnesses the defense intended to call were located. He stressed his office needed to know where the witnesses were. Under the discovery statute there was a continuing obligation for his office to keep the prosecution informed as to where the witnesses were.

Chairman Anderson questioned if Mr. Morrow thought the new proposed language in section 3 violated equal protection, and he responded he was concerned about that. Chairman Anderson asked if the language in section 3, subsection 2 (a) and (b) was the only place he saw an equal protection problem, and Mr. Morrow responded affirmatively.

Mr. Morrow referred to section 5 (Exhibit G) and noted he wanted to change the language "after having been served with notice of the court order" to "when the person knew or had reasonable cause to believe there was a support obligation."

Ms. Shipman responded to Mr. Morrow’s testimony by suggesting section 1, subsection 1 (b) be amended after the words "or other legal obligation" by adding the words "outside the control of the defendant." She also suggested adding the amendment Ms. Buckley had presented.

Chairman Anderson requested her suggestion be submitted in writing so he could present them in a work session.

Mr. Carpenter noted in the bill a defendant had to give a detailed description for an affirmative defense, but he pointed out it stated the only thing the prosecuting attorney had to do was list the witnesses. He questioned if that was a fair situation and Ms. Shipman replied the prosecutor had already served the defendant with specific charges of an offense, so they had already received a detailed description of what the charges were.

Chairman Anderson closed the hearing on A.B. 617 and brought it back to committee. He moved the bill to a work session in which they would discuss the proposed amendments.

Chairman Anderson opened the hearing on A.B. 592.

Chairman Anderson distributed letters in support of A.B. 592 from Judge Janet J. Berry, Second Judicial District Court (Exhibit H) and from Judge Deborah Schumacher, Second Judicial District Court (Exhibit I).

Gene Porter, district judge, Eighth Judicial District Court, Clark County, informed the committee A.B. 592 would change the formula currently used to determine the pension benefits judges obtained upon retirement. He explained some judges were covered by the Public Employees Retirement System (PERS) and other judges were covered by a separate judicial pension system. The bill addressed the statutes dealing with the separate judicial pension system of which he was a member. He noted judges were state employees and under the PERS system all employees vested in their retirement system after 5 years and received credit for years 1 through 4. He explained what they were attempting to do with the bill was lower the percentage rate from 4.16 percent to 3.40 percent which would allow the judges to receive credit after the 5-year vesting for years 1 through 4. For clarification, he explained after 5 years they started at "ground zero," therefore, they did not receive credit for years 1 through 4, but under the PERS system they did receive the credit for those years.

Chairman Anderson related he understood why they judges had requested a lower percentage rate in order to receive credit for years 1 through 4 and agreed government employees received the credit already.

Judge Porter called attention to the fact during the 69^th Session, 3 new seats were created for the Eighth Judicial District Court in Clark County. The committee designated 4-year terms for those seats because in the election year 2002, all of the judges would be up for reelection at the same time.

Mark Gibbons, district judge, Eighth Judicial District Court, Clark County, testified he was also chairman of the Eighth Judicial District Court Legislative Committee and a member of the legislative committee of the state district court association. He indicated the average entry age for district court judges in the state was 45 years old and the total number of current judges in the state was 62. Of that number, approximately one half were in the PERS system and the rest were in the judicial plan. He reiterated the legislation related to the judicial plan.

Judge Gibbons indicated most judges were starting the profession later in life, and most of the judges entering into the judicial plan had come from private practices. The PERS participants had been working in district attorney or public defenders’ offices or something similar and already had the PERS plan. He stressed it was important for those starting at age 45 to receive credit for the prior 4 years of service.

Judge Gibbons referred to Judge Redmond from Clark County noting he had received a heart transplant the previous summer and still ran a rigorous campaign and won by a large margin. The judge was in his sixties, which was an older age to start his profession and enter into the retirement plan, and he would like credit for the first 4 years.

Judge Gibbons noted there would not be a fiscal impact for the next biennium, and regarding the years after that, he opined it would be relatively minimal as far as a future fiscal impact to the state.

Chairman Anderson contended the Committee on Ways and Means would probably receive the bill because the Chairman of that committee had indicated, even though the bill would not obligate the current fiscal budget, the potential for obligating fiscal budgets in the future concerned his committee.

Norman C. Robison, senior district judge, testified when the district judges association met the previous year their aim was to mirror the two plans as closely as possible.

Judge Robison noted, as the bill currently stood the only fiscal impact would be if a judge currently in the system was to retire prior to 22 years of service, but as the bill was currently written there was no fiscal impact. He pointed out the closer the judges came to their 22 years, there would be less fiscal impact in the future.

Judge Robison called attention to three bills currently being considered by the legislature that affected Nevada Revised Statute (NRS) 2 and NRS 3. Those were the bill being discussed, A.B. 592, the bill that would be heard next in committee, A.B. 622 and S.B. 514 which was passed out of the senate.

Judge Robison pointed out none of the bills conflicted with each other so if any one of them passed it would not affect the other bills.

Offering statistics to the committee, Judge Robison pointed out a judge recently retired after a 6-year term in Reno and had a retirement rate of 8.3 percent. Under PERS he would have had 15 percent, with 2.5 percent per year. Under the formula in the bill of 3.4 percent, the judge would have had approximately 20 percent, which would be closer to the PERS plan.

Chairman Anderson asked how long Judge Robison had been on the bench and he responded he served 14 years, and he retired under PERS. They discussed each of their retirement plans and Chairman Anderson questioned the percentage rate of the two retirement plans. Judge Robison explained the judicial system had a maximum retirement of 75 percent and he thought PERS had a 90 percent retirement under their old plan and their new plan was also at 75 percent. He reiterated the PERS system could not be changed, but the bill would attempt to mirror the two plans.

Ms. Buckley commented it made sense to receive credit for the first 4 years because it helped to retain and attract qualified candidates for the bench. She explained the reason she questioned why the bill was in judiciary and not in the money committee was because there had been discussion about the fiscal soundness of the judicial election program. In 20 years when there would be a large number of retirements, the state would be "on the hook" for millions of dollars as opposed to the PERS system where it had been invested and paid. She wondered if there was discussion regarding new judges converting to a more actuarially based system.

Judge Robison testified there would be an interim study for the next session to determine if the judicial retirement would be funded through PERS and administered by them. They were trying to make the plans as close to each other as possible so there would not be an effect on existing benefits and benefits for the new judges coming on.

Brian Doran, deputy director, Administrative Office of the Courts (AOC), testified the AOC and the Supreme Court supported the bill.

Leonard Gang, private citizen, indicated he was in support of A.B. 592 including the amendment which would change the 1 year to 5 years, which he noted would eliminate any benefit to him, but he thought it was necessary the bill be approved. He explained he did find some inequities in the bill and wanted to point them out to the committee.

Mr. Gang called attention to a newspaper article about Judge Polaha who was recently sworn in as a district court judge in Washoe County to succeed Judge Agosti who was currently on the Nevada Supreme Court. The last paragraph of the article pointed out Judge Agosti was elected for a 6-year term and 2 years of her term had expired, so Judge Polaha would serve 2 years of her term and then would run in the next general election. He would run in that election and again in 2 years so he would have to run for office twice before he could be vested with 4 years under the judicial pension. He noted if Judge Polaha served for 2 years and lost, he would receive nothing, and if he served 4 years and lost, he would receive nothing. He felt that was an inequity that should be corrected.

Mr. Gang explained as the statute currently read, if a person was a state employee under PERS, when he or she became a judge, they would have the right to continue to be covered under PERS. If a person was not a state employee, he or she would not have the opportunity to elect to be covered by PERS.

Mr. Gang felt there was no reason why two people who were serving the same job should not be able to receive the same benefits toward retirement and thought that inequity should be covered.

Assemblyman Collins asked for clarification on the number of years involved in the judicial plan and questioned if they were trying to bridge the plan.

Mr. Gang responded he was not trying to amend the bill to make it cover 1 year. The only thing he was pointing out was the inequity that judges should receive credit under PERS for state service if they were state employees. He was not suggesting the bill be reduced, and he did not want to endanger the bill.

Chairman Anderson observed the purpose of the bill was to move the judicial selection to mirror the PERS system as a whole. The inequity was for those people who moved from judiciary to public employment. He opined if the piece of legislation passed, they would be closer in parallel form so that the inequity would become more apparent to anybody who compared the two systems, and maybe they would be in a better position to clear up the inequity that may exist.

Judge Gibbons testified the judges would review the issue Mr. Gang raised and would support him as much as they could, but he asked the committee to move forward on the bill with the proposed amendments.

Judge Gibbons distributed their proposed amendments (Exhibit J) to the bill and discussed it with the committee and pointed out the changes they suggested.

Mr. Collins questioned if the normal plan took the first year before vesting started, would it be consistent or would it include the first year going back to day 1, and were the inequities based upon the fact some of the plans were paid in part by the subscriber.

Chairman Anderson responded with examples of the different plans available to school districts, state government, and universities and stated it depended upon which category a person was placed.

Judge Robison clarified when he was first appointed and elected he paid one half of the contribution and the state paid half. Since then the state fully funded PERS retirement. He noted in judicial there was not any funding and no contributions either way.

Chairman Anderson closed the hearing on A.B. 592 and brought it back to committee.

Chairman Anderson assigned the bill to Mr. Claborn.

Chairman Anderson opened the hearing on A.B. 622.

Brian Doran, deputy state court administrator, Nevada Supreme Court, informed the committee the Supreme Court and the district judges supported A.B. 622. The bill would provide surviving spouses of judges and district judges an increased minimum retirement benefit. He noted currently the minimum benefit for surviving spouses was $2,000 per month and the proposed amendment would raise the minimum to $3,000 or 50 percent of the pension the justice or judge was receiving at the time of his or her death.

Mr. Doran indicated the current $2,000 minimum was set in 1991. Since that time, due to the normal course of inflation, the purchasing power of that amount had been decreased. He noted there currently was not a built-in cost of living adjustment. Every surviving spouse began at the $2,000 minimum at age 60. He pointed out in the past a statutory change was required to address the problem. A.B. 622 sought to correct the inequity of the decreasing value of the benefit due to inflation, and based on the cost of living increases obtained under PEERS, it provided an ongoing incremental increase in the benefit.

Mr. Doran testified the request for the increase was consistent with other states. He observed 34 states used a percentage of the deceased judge’s salary as a base for the surviving spouse, and 28 states used 50 percent or higher.

Assemblywoman Koivisto questioned if the bill would be "a hit" on PERS and Mr. Doran said it would not affect PERS.

Michael Gibbons, district judge, Ninth Judicial District, indicated he served on the legislative committee of the district judge’s association. He pointed out there was no option under the current law for a percentage of the judge’s benefit, it was strictly a flat fee of $2,000, and he reiterated it had been 8 years since it had been addressed. He stressed they wanted to mirror what happened with PERS and allow cost of living increases as determined by PERS, but the money would not be paid by PERS, it came out of the judicial retirement money. He noted they were looking for a sufficient increase to avoid having to return to the legislature in the near future.

Judge Gibbons concluded his testimony by noting there were 30 justices and judges who would be affected by the bill and reiterated a spouse had to be age 60 to receive benefits, and it ended upon death or remarriage.

Chairman Anderson closed the hearing on A.B. 622 and brought it back to committee.

The bill was not assigned because it would be going to the Committee on Ways and Means.

Chairman Anderson opened the work session.

Chairman Anderson discussed A.B. 544 which had been heard during the previous committee hearing, April 5, 1999 and indicated some amendments had been proposed. He addressed Ms. Buckley because it was her bill and he was concerned the committee was reaching further than she had intended it to go. He noted it was not on the work session document (Exhibit K).

Ms. Buckley apologized for missing the hearing on the bill, but she reported all of the judges and justices with whom she had talked felt the amendment was a better way to go. She pointed out the bill set the correct policy regarding both parents having joint custody and she supported the amendment.

Chairman Anderson explained the request was to have the bill further amended in section 2 so the parents were put "back on equal footing."

Mr. Williams clarified the amendment was in section 2, lines 19, 20, 23, 24, and 31, to delete the phrase "for other parent having joint custody."

Ms. Lang stated lines 26 through 28 of section 2 would also be deleted.

Chairman Anderson reiterated if the bill was going to be processed the committee needed to retain the proposed language changes in section 1 and further amend the language in section 2 as previously discussed.

The bill was assigned to Ms. Buckley.

Mr. Williams explained there were nine bills contained in the work session document (Exhibit K). He called attention of A.B. 485 found on page 3 of the document.

Mr. Williams said the bill was requested by Assemblywoman Koivisto, and he read the discussion (Exhibit K) regarding the hearing on March 31, 1999. He noted Chairman Anderson had requested all interested parties work with Ms. Koivisto on a new proposed amendment, and that amendment could be found in the green attachment of the document, titled "Consensus Amendments to A.B. 485."

Ms. Koivisto explained the amendment to A.B. 485 was almost the same as the original bill, it just provided a little more detail regarding notification and she was satisfied with it.

Mr. Carpenter questioned the language in paragraph 2 of the proposed amendment (Exhibit K) regarding a bail enforcement agent notifying the local law enforcement agency. He did not think the language was clear.

Chairman Anderson opined they were dealing with a conceptual amendment in terms of the location an agent would "break into."

Ms. Lang agreed with the Chair the language was difficult and she would make sure it was clarified.

Chairman Anderson assigned the bill to Ms. Koivisto.

Chairman Anderson returned to A.B. 519 discussed earlier in the hearing. They were waiting for Mr. Carpenter to talk with individuals at the training center in Elko.

Mr. Carpenter explained, after talking with the people in Elko, they were concerned it would cause more paperwork, and that did not have much to do with taking care of the juveniles in the facility. He pointed out the bill said there would not be a fiscal note, but he thought there would have to be a fiscal note because another deputy administrator would have to be hired. For those reasons he would vote no on the bill, but he would research further to see if it was needed or not.

Chairman Anderson conceded Mr. Carpenter had the opportunity to see first hand how the facility operated and the effectiveness of the program because it was in his district, but he disagreed with him.

Ms. Leslie mentioned she was in support of the bill and reminded the committee a new facility was being built in southern Nevada for the serious and chronic juvenile offenders. She noted she was not happy with the juvenile correction system and felt there was a lot of work to be done. She felt the position would help spotlight some of the issues. She questioned if the position was not in the state budget, why would it not go to the Committee on Ways and Means.

Chairman Anderson responded he intended to ask the Chairman of that committee the same question.

A roll call vote was taken.

Chairman Anderson asked Ms. Leslie to be a "backup" for Mr. Humke who would take the bill to the floor.

Mr. Williams explained A.B. 267, which was included in the work session document (Exhibit K), was requested by Assemblyman Perkins and heard in a joint hearing with the Senate Committee on Judiciary on March 17, 1999.

Mr. Williams read from the discussion contained in the document (Exhibit K) regarding the requirement to notify law enforcement if a person witnessed a violent or sexual act against children, based on the murder of Sherrice Inverson in a casino in Nevada. He noted there was a conflict notice on the bill.

Ms. Buckley discussed how appalled the committee was about the death and how the witness bragged about witnessing the rape and murder. She pointed out the concerns of the committee were, they did not want to adversely affect law enforcement as well as family members. After discussions with the Chair, law enforcement, and attorneys, she suggested the committee take a cautious approach requiring the reporting of violent or sexual offenses against juveniles under the age of 10 years. She pointed out it should be required of a person who was privileged such as an attorney. She related there were concerns among those who testified at the original hearing, if a child was considered anybody under the age of 18, it could cause juveniles who were the same age, like a 17 year old testifying against another 17 year-old, to not come forward because they were afraid to testify.

Ms. Buckley concluded her presentation by requesting the amendment include the requirement to report to law enforcement only a violent or sexual offense against a child under 10 years of age.

Chairman Anderson suggested any reference in the bill to the Welfare Division, the preferred term should be the Division of Child and Family Services (DCFS).

Ms. Lang observed in order to follow Ms. Buckley’s suggestions most of the provisions would be deleted from the bill and replaced with a simpler provision that stated an affirmative requirement to report. She questioned if the committee wanted to keep the definition of violent or sexual offense or if they wanted to leave a broader definition. Ms. Buckley thought the definition should be kept in the bill.

Ms. Ohrenschall queried if there would be any penalties or just a naked, affirmative requirement and Ms. Buckley responded it would be the same approach as in the original bill, subject to the pleasure of the committee and the Chair.

Assemblyman Brower and Ms. Buckley discussed concerns he had regarding the penalty of a misdemeanor and whether or not an offender could be prosecuted despite the fact the perpetrator was not convicted. He also questioned the provision in the bill regarding a civil action against a violator of the new law and Ms. Buckley stated she intended to delete that provision.

Mr. Brower expressed concern about the age and he suggested the age should be 12 years-old and under.

A discussion ensued among Chairman Anderson and members of the committee regarding the age of the child and they came to the conclusion the age should be 12 years of age.

Ms. Angle stated she objected to the bill because she was concerned the perpetrator should be prosecuted and she was afraid if that was not accomplished it would be more difficult for witnesses to come forward.

Ms. Buckley questioned if the committee wanted to require the conviction of the person who did not report a crime. The committee discussed the pros and cons of the issue and decided there was a concern regarding that issue, and Ms. Lang stated there might be a statute of limitation issue.

Ben Graham, representing the District Attorney’s Office in Clark County, testified there was a 1-year statute of limitation for filing the misdemeanor charge. He noted it would not have to be tried within a year, but it would have to be filed by then. Chairman Anderson questioned if the district attorney would drop the charge if the perpetrator was not convicted, and Mr. Graham stated that was correct. Mr. Brower pointed out there would not be a prosecution under the new law with the absence of conviction of the perpetrator. He suggested a better approach would be to allow for a conviction or prosecution only if the underlying perpetrator was charged. Mr. Graham felt that would be viable and pointed out the committee was looking at an offense with specific elements that would have to be proven.

Ms. Buckley contended a policy message would be sent that they wanted the perpetrator arrested first, and she felt most of the crimes could be charged within 1 year.

It was decided the bill would be brought back with the requested changes and heard in another work session.

Mr. Williams called attention to A.B. 379, which was requested by Assemblyman Gustavson and first heard in committee on March 10, 1999. He read from the discussion found in the work session document (Exhibit K) explaining the reason for the bill request was to increase the penalties for providing a controlled substance to a minor. He pointed out the proposed amendment could be found on the yellow attachment to the document.

Chairman Anderson and Mr. Gustavson discussed the issue of raising the level of the crime to a category A felony and the concerns of the committee regarding the dispensing of prescription drugs. Mr. Gustavson stated in regard to dispensing drugs he returned to the original language found elsewhere in the original statutes which was "the giving, trading, or otherwise making available a controlled substance."

Chairman Anderson stated he could not support the bill, but he wanted the bill discussed in the committee instead of not being heard.

Ms. Buckley requested Ms. Lang inform the committee what the penalties were for selling a controlled substance to a minor. Ms. Lang replied under Nevada Revised Statute (NRS) 453.334, lines 20 through 25, the current penalties for selling a controlled substance was a category A felony. A discussion ensued among the Chair, Ms. Buckley, and Mr. Gustavson, regarding his proposed amendment (Exhibit K) concerning the penalty for selling a controlled substance. Ms. Lang pointed out it was already a category A felony, but the bill made it a crime of aggravating circumstances for the death penalty and raised the minimum sentence to 15 years and added the sentence of life without the possibility of parole.

ASSEMBLYWOMAN ANGLE MOVED TO AMEND AND DO PASS A.B. 379.

ASSEMBLYMAN NOLAN SECONDED THE MOTION.

A roll vote was taken.

ASSEMBLYWOMAN BUCKLEY, ASSEMBLYMAN CLABORN, ASSEMBLYMAN COLLINS, ASSEMBLYWOMAN KOIVISTO, ASSEMBLYWOMAN LESLIE, ASSEMBLYWOMAN MCCLAIN, ASSEMBLYWOMAN OHRENSCHALL, VICE-CHAIRMAN MANENDO, AND CHAIRMAN ANDERSON VOTED NO. THE MOTION FAILED.

Mr. Williams informed the committee A.B. 621 was requested by the Nevada Sheriffs and Chiefs Association and was heard in committee on March 27, 1999. He explained several members of law enforcement testified on the bill, which made various changes concerning the Central Repository for Nevada Records of Criminal History, and he read the discussion found on page 3 of the work session document (Exhibit K). He pointed out a copy of a memorandum from Dennis DeBacco, manager of the Records and Identification Services for the Nevada High Patrol could be found as the purple attachment to the document which addressed some concerns Lucille Lusk with the Concerned Citizens of Nevada had about the bill. The proposed amendment could be found as a white attachment to the document.

Mr. DeBacco felt his proposed changes addressed Ms. Lusk’s concerns. He had met with her, and they had a very productive work session regarding the bill. He thanked her for her input and noted she contributed positively to amending the bill.

Ms. Lang explained she had worked with the central repository and tried to work through the proposed amendment. They clarified the language and tried to outline for the committee where language would be placed in the bill. She indicated two changes needed to be added to the amendment. One of the changes was the definition of law enforcement agencies and if it should be deleted or expanded. Another change was the clarification that the annual reporting occur on July 1 of each year.

Kalene Dickerson, police services manager, Reno Police Department, explained her department needed a broader definition because there were also school police, tribal police, university police, fire marshals, and parole and probation.

Ms. McClain questioned why temporary and extended temporary protective orders (TPO) were not being added to the central repository.

Grace George, employee, the Records and Identification Services, Nevada Highway Patrol, responded it was not being deleted from the record’s collection. The bill referred to "record of criminal history" versus other records the repository collected. She noted they collected TPOs under other existing areas of the NRS.

Chairman Anderson assigned the bill to Assemblyman Gustavson.

Mr. Williams explained A.B. 511 was requested by Assemblywoman Ohrenschall and was first heard in committee on March 30, 1999. He read from the discussion found on page 5 of the work session document (Exhibit K). The bill was requested to correct 1997 legislation that left the Division of Child and Family Services (DCFS) officers out of the provisions for providing community notification and supervising juvenile sex offenders released from state facilities.

Mr. Williams pointed out a proposed amendment submitted jointly from the Carson City Juvenile Probation Office, the Washoe County Department of Juvenile Services, and the Nevada Youth Parole Bureau, could be found on the salmon colored attachment of the document.

Chairman Anderson referred to section 5 (a) of the proposed amendment "a youth committed to the division pursuant to NRS 62.213 is on parole status immediately if not placed at a youth correctional facility" and asked for an explanation of that sentence.

Leonard Pugh, director, Washoe County Department of Juvenile Services, pointed out he had requested NRS 62.211 be added to the language in the bill so it would include anybody committed to a correctional or mental health facility for a sex offense. It would require when they were released on parole, they would be supervised by that agency. He stated there was concern under NRS 62.213 a juvenile could be transferred to DCFS and placed in an institution that was not a correctional facility and used as an example a facility in Utah called "Youth Track." If while the juvenile was there he had some behavioral problems, the DCFS would be required to respond. He noted under current law the child would be arrested for parole violation because he was required to follow the rules, but technically he had not been paroled by an institution. He stated the chief of Nevada Youth Parole Bureau, Bruce Kennedy, told him there could be a technicality that would require them to be challenged as to what authority would be dealing with the juvenile even though the child was under their responsibility. Mr. Pugh said Mr. Kennedy told him, pursuant to NRS 62.213, immediately after court and at the time they were placed in an institution, it would give youth parole the authority to intervene if there were behavioral problems at the treatment facility.

Chairman Anderson opined it was "clumsy wording" on their behalf, and he did not find the language in the proposed amendment very clear. He requested Ms. Lang deal with it as a conceptual amendment as he was concerned there could be unattended consequences, and maybe the bill was broader than what it had intended to do. Ms. Lang replied she would work out the language

Mr. Pugh added under NRS 62.213 the court could commit somebody to the DCFS who normally would go to the Nevada Youth Training Center (NYTC) or the Caliente Youth Center. He pointed out because those programs did not provide the required services in the area of psychiatric or mental health treatment, DCFS was required by statute to put the youth in a program that met those needs. The problem youth parole had was technically the juvenile was not paroled from an institution like they would be if they were paroled by NYTC or Caliente.

Mr. Pugh stressed the important element of the bill was to make sure juveniles on parole were subject to the supervision requirements for parole officers, and they would no longer be the responsibility of probation officers.

Chairman Anderson called attention to section 5 (b) and wondered why the NRS referred to in earlier discussions was not mentioned in that section, and Mr. Pugh replied he felt it was needless language. He pointed out the requirement stated in that section currently happened through the normal course of business. It was left in the amendment because it was included in the original bill.

Chairman Anderson and Mr. Pugh discussed the language in the proposed amendment and concluded they would try to improve the bill by including NRS 62.211 and NRS 62.213 relative to section 5 and section 9 because of the possible conflicts with drafting. He added they would not take the addition of NRS 62.271 (Exhibit K).

Ms. Lang noted when she read the initial amendments on sections 5 and 9 (Exhibit K) regarding parole status, if they were added to the sections indicated, they would affect only sex offenders. If the intent was to apply the parole status to any juvenile, the language was in the wrong place. Mr. Pugh responded he would take responsibility, but he reiterated his only concern was that parole officers had to be responsible for community notification in addition to probation.

Ms. Lang specified NRS 62.211 should be amended into the bill because it was Mr. Pugh’s primary concern. In regard to the rest of the changes, she indicated it was a policy consideration whether they wanted to address the issue of parole status and whether it applied to sex offenders only or to all offenders.

Chairman Anderson explained Ms. Ohrenschall brought the piece of legislation forward based upon the issue of juvenile sex offenders, and he felt that was the principal purpose of the section. He wanted to continue with the intent of the drafter and the committee to deal with juvenile sex offenders and clarify the role of parole and probation relative to their requirements.

Mr. Williams indicated A.B. 118 was requested by the Administrative Office of the Courts (AOC) on behalf of the Eighth Judicial District Court in Clark County and was heard in committee on February 23, 1999. He read from the discussion found on page 7 of the work session document (Exhibit K) regarding the financial impact on the district courts when they had to provide juries to the justice courts when needed. He pointed out the proposed amendment could be found on the ivory colored attachment of the document.

Chairman Anderson informed the committee the bill violated rule 14.7 of the standings rules of both houses.

Ms. Lang referred to a copy of the rule 14.7 (Exhibit L) which addressed amendments during the current legislative session. Legal Division had been asked not to draft amendments to a bill if the subject matter in the amendment was independent of and not specifically related and properly connected to the subject that was expressed in the title of the bill or resolution. She pointed out the proposed amendment would delete all of the existing provisions of A.B. 118 and replace it with a different title and different subject.

Chairman Anderson recessed at 1:00 p.m. and announced he would reconvene the hearing at 4:00 p.m.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: