The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, April 21, 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:

Note: Interested parties observed the meeting and provided testimony through a simultaneous videoconference in Room 4412 of the Grant Sawyer State Office Building, 555 East Washington Avenue, Las Vegas, Nevada.

Chairman Anderson received the following information from Mr. Williams, Committee Policy Analyst. The Assembly Committee on Judiciary had 78 bills passed through the Assembly, 2 resolutions passed through the Assembly, and 3 bills were defeated in the Assembly. The committee had 13 bills in the Assembly Committee on Ways and Means.

Chairman Anderson opened the hearing on S.B. 480.

Pamela Bissell Crowell, Deputy Secretary for Elections, Secretary of State’s Office, testified for S.B. 480. "With me from our office is Kristi Geiser, Program Manager for the Confidential Address Program. This program was conceived as a means of affording additional protection to a person fleeing an environment of domestic violence through Senate Bill 155 of the 1997 Legislative Session. To become a participant in the Confidential Address Program, trained personnel of a state Welfare Division office or a domestic violence program will have screened an individual. Evidence of domestic violence, such as a police report, or restraining order, must be presented. The application together with a copy of any evidence of domestic violence is forwarded to our office for the program. The current proposal in S.B. 480 is to capture an omission which occurred in the 1997 legislation – that being to include among those exempt from jury service any person who is a participant in the Confidential Address Program. This amendment is a component necessary to the program’s purpose. Thank you, Mr. Chairman. Mrs. Geiser and I will be happy to respond to questions." She submitted her testimony in a letter, (Exhibit C).

Assemblywoman Buckley asked if any person with a fictitious address and persons 70 years or older was automatically exempt for serving as grand or trial jurors. Ms. Crowell responded, "yes."

Assemblywoman Buckley asked if a person were on the exempt list and the danger had subsided, would the person be able to serve on a jury if he or she wanted to serve on a jury.

Chairman Anderson answered the first part of Assemblywoman Buckley’s question. If he were a railroad employee, they would have to apply to have your name removed from the exempt list. Ms. Crowell responded a victim might wish to vote. It was common knowledge the courts had pulled names from the list of registered voters for jury duty. The list of utility subscribers was another source to call citizens for jury duty. If the victim in the Confidential Address Program was a registered voter, the victim’s voter registration application would be held separate from the other registered voter applications. The county clerk would be the only person to view and handle the victim’s voter registration application. The victim’s name would not appear in the pool of potential jurors.

In answer to Assemblywoman Buckley’s question, Ms. Crowell stated if a person wanted to leave the program, the person would write a letter to the secretary of state stating they did not want to remain in the program any longer. The Secretary of State’s Office would contact the person’s county clerk to add the name to the pool of potential jurors.

Assemblyman Gustavson wanted to know if a person was able to serve on a jury, could the person serve on a jury. Ms. Crowell stated it was a situation where the confidentiality of every individual participant in the program was maintained. The secretary of state could not guarantee the individual in the program complete confidentiality if the individual gave their confidential address or phone number to a relative or a friend. A person in the Confidential Address Program would need to closely guard their confidential information.

Assemblyman Gustavson quoted from page 2, lines 6, 7 and 13 of the bill, "if the juror so desires." Ms. Crowell responded the option would be there for the individual, but the individual would have destroyed their confidentiality. By serving on a jury, what purpose would be served for the individual to remain in the Confidential Address Program. Chairman Anderson restated Ms. Crowell’s response. The individual had to decide to remove him or herself from the program, otherwise a reasonable person would make the assumption the individual would remain in the Confidential Address Program.

Paula Berkley, representing Nevada Network Against Domestic Violence, could not be physically present and left (Exhibit D). Chairman Anderson read her prepared statement. "The Nevada Network Against Domestic Violence supports S.B. 480 which would exempt victims of domestic violence who must utilize a fictitious address from jury duty. This bill is an attempt to increase the safety of these individuals. To our knowledge, this bill would effect only 10 individuals in Washoe County, which demonstrates the limited but essential character of this statute. The network would appreciate passage of this bill."

Chairman Anderson closed the hearing on S.B. 480 and opened the hearing on S.B. 483.

Ben Graham, representing Nevada District Attorneys Association, testified for S.B. 483. Mr. Graham stated over the years bad checks were neglected by the various law enforcement agencies. Washoe County was credited for having established the first bad check unit in Nevada. The bad check unit would collect on checks written with insufficient funds or on a closed checking account. When Stewart L. Bell was elected district attorney for Clark County 5 or 6 years ago he established a bad check unit.

Daniel Ahlstrom, Deputy District Attorney, Bad Check Unit, Clark County testified for S.B. 483. As society had progressed, some of the out-of-state financial institutions had been less than enthusiastic about honoring some of the subpoenas particularly in the State of California.

Mr. Ahlstrom was requesting use of an affidavit at a preliminary hearing or a grand jury only. Preliminary hearings or grand juries required only slight or marginal evidence. At a later date if the case went to trial where evidence beyond a reasonable doubt was required, witnesses would be brought to court to testify.

S.B. 483 would allow the investigators in the bad check unit to obtain an affidavit, which could be used in a preliminary examination in lieu of the problem of subpoenaing, documents from out-of-state financial institutions.

Mr. Ahlstrom felt the more evidence the bad check unit had to show a court or a grand jury the person before them was the offender, the easier to convince the offender to make good on the check(s) they wrote or to convict the offender. The affidavit was patterned after the affidavit to report stolen property, (Exhibit E) in Nevada. The bad check unit would make every effort to resolve the problem by having the offender make good on the check or checks they wrote. The bad check unit would like to think of the process as the bad check diversion program.

Before the unit began a case, a certified letter had to be sent by the victim. The unit would generate a number of phone calls and computer letters to contact the offender. The unit would make every effort not to file charges against the offender in an attempt to resolve the problem. When contact could not be made with the offender, charges were filed. If the offender was picked up, the bad check unit attempted to resolve the problem with the offender.

If the problem could not be resolved, there would be a preliminary examination. Chairman Anderson asked how did the preliminary exam hold up to the constitutional right to be able to face your accuser and was 100 miles a reasonable distance. Mr. Ahlstrom responded the unit had a problem with out-of-state financial institutions. Chairman Anderson asked was the problem the bank office or the branch office of the bank. Mr. Ahlstrom responded if there was a branch office in Clark County, he generally was successful having the bank make good on the check(s).

Ben Graham commented the 100 miles part of the bill would be rarely used unless there was a single bank in Fallon or Elko with no branches in other areas of Nevada. The affidavit was simple, the bank involved would be asked, if they were the banks, did they keep records, did they bring the offender’s bank records, and what did those records reveal. The records revealed insufficient funds or the account was closed. The affidavit was perfunctory.

Assemblyman Collins stated 100 miles would take a person past Mesquite, or past Laughlin, which would be out-of-state.

Assemblyman Brower emphasized at a preliminary hearing the usual constitutional safeguards did not apply. Mr. Graham agreed the level of evidence was minimal at a preliminary hearing. Mr. Graham stated the process was perfunctory and was needed to collect on the bad checks.

Chairman Anderson closed the hearing on S.B. 483.

ASSEMBLYWOMAN OHRENSCHALL MOVED TO DO PASS S.B. 480.

ASSEMBLYWOMAN MCCLAIN SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLYWOMAN OHRENSCHALL MOVED TO PLACE S.B. 480 ON THE CONSENT CALENDAR.

ASSEMBLYWOMAN MCCLAIN SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

If the bill were removed from the consent calendar in the Assembly, Assemblywoman Ohrenschall would defend the bill.

ASSEMBLYMAN COLLINS MOVED TO DO PASS S.B. 483.

ASSEMBLYMAN NOLAN SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLYMAN COLLINS MOVED TO PLACE S.B. 483 ON THE CONSENT CALENDAR.

ASSEMBLYMAN NOLAN SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

If the bill were removed from the consent calendar in the Assembly, Assemblyman Collins would defend the bill.

Chairman Anderson opened the hearing on S.B. 173. Chairman Anderson commented it was the fourth legislative session for the discovery bill.

Ben Graham testified for S.B. 173. He mentioned he was before the committee on the behalf of all the misdemeanor prosecutors throughout the state including Ben Little from the city of Las Vegas; Tim Randolph from the city of Sparks, Bill Gardner from the city of Reno; Dudley Lowery from the city of Henderson; Doug Dickerson from the city of Las Vegas; Noel Waters from Carson City; and John Morrow from the Washoe County Public Defenders Office.

Mr. Graham accepted the blame for what happened in the past, but he asked the committee to help him fix the discovery bill. In 1995 a discovery bill was signed into law and ruled unconstitutional. In 1997 the room was full of elected district attorneys and prosecutors from around the state. They attempted to establish a uniform policy for the state in regard to revealing evidence against a defendant in misdemeanor trials and felony trials. The defense in turn would reveal some discovery to the state. There were certain notice requirements, exchanges of expert witnesses, and curriculum vitae.

The attempt of the bill was to adopt the discovery process used in Clark County and several of the northern counties. In the remaining counties of the state there was no discovery being provided by the state to the defendant. In the process of having created a reciprocal discovery statement, some loopholes were created in misdemeanor discovery not intended. Misdemeanor trials were important trials and the only trials in municipal jurisdictions and justice court. Mr. Graham showed the committee a discovery packet for a second time driving under the influence (DUI) offense. The discovery packet was a half-inch thick stapled document. When a defendant requested discovery before going to trial, the defendant would be handed a packet containing the police officer’s report, the prior pleadings report for DUI, the breathalyzer or blood analysis report. Everything the state knew was contained in the discovery packet. In 1997 some notice requirements and some expert witness requirements were not necessary or relevant in misdemeanor prosecutions. What had happened in some jurisdictions was some of the formalities had created loopholes allowing defense attorneys to take advantage of the loophole.

Mr. Graham gave a recent example. The existing law had a 21-day notice. A defendant was picked up on day 23, arraigned, and a trial date was set in 18 days. The state sent the notice it was required to send, but since the time was not 21 days, the justice court judge dismissed the DUI. The situation was impossible for the state to meet all the time deadlines. Mr. Graham asked the committee to eliminate the loopholes.

The testimony at the Senate hearing on the bill had a couple of defense attorneys, along with Mr. Morrow and Mr. Gibson from the Public Defenders Offices. There were a couple of changes eliminated from the bill. Mr. Graham represented the defense bar. The defense bar felt the bill was an appropriate action to take with the misdemeanors. Mr. Graham informed the committee there were still some prosecutors who did not want misdemeanor discovery. S.B. 173 did not eliminate discovery. The bill eliminated the loopholes from the previous session. Mr. Graham urged the committee to pass the bill. Chairman Anderson asked if the bill reduced the requirement only where a misdemeanor was involved. Mr. Graham responded, "Correct, they had been provided discovery by the regular discovery process."

Chairman Anderson gave an example of a peace officer that had interviewed various people involved and did not subpoena the witnesses to appear for the trial. Could the witnesses be called without informing the defense. Mr. Graham quoted S.B. 173 page 2, section 4, "Each party has a continuing duty to file and serve upon the opposing party any change in the last known address, or if applicable, last known place of employment, of any witness that the party intends to call during the case in chief of the state or during the case in chief of the defendant as soon as practicable after the party obtains that information."

Chairman Anderson asked if each side had to give their real list or their wish list of witnesses to the opposing side. Mr. Graham responded, "The real list of witness."

John Morrow, Attorney, Washoe County Public Defender testified for S.B. 173. Originally, there was spirited debate on the bill. The differences had been resolved. There would be good faith on each side, the prosecutor and the defense attorney, for discovery. Chairman Anderson stated he was tired of seeing the discovery bill before the committee for the fourth time. Chairman Anderson asked if the bill would speed up the process of providing for a clear defense for Mr. Morrow’s clients. Mr. Morrow responded he had confidence S.B. 173 would work. He mentioned discovery was a dirty word in his county for many years. There were some folks who would do everything they could do to obstruct discovery. Mr. Morrow was willing to work with the bill.

Chairman Anderson closed the hearing on S.B. 173.

ASSEMBLYMAN COLLINS MOVED TO DO PASS S.B. 173.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLYMAN COLLINS MOVED TO PLACE S.B. 173 ON THE CONSENT CALENDAR.

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

If the bill were removed from the consent calendar in the assembly, Assemblywoman Angle would defend the bill.

Chairman Anderson informed the committee more bills were being placed on the consent calendar. More committees were placing bills on the consent calendar. There were two ways to remove a bill from the consent calendar. First, an assemblyman or assemblywoman would inform the chief clerk in writing. Second, when the bill came up on the second reading on the consent calendar or the day to vote on the bill, the bill could be removed from the consent calendar.

Assemblyman Claborn asked how many bills the committee would be hearing. Chairman Anderson responded 47 bills. The committee could be finished about May 8, 1999. Chairman Anderson warned the committee Assemblywoman Buckley had a bill coming before the committee. Chairman Anderson cautioned the committee members to carefully track their bills on the Senate side. If their bill ran into a problem, the committee member was to inform the leadership team to avoid problems with the bill.

Chairman Anderson adjourned the meeting at 9:03 a.m.

RESPECTFULLY SUBMITTED:

Ken Beaton,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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