The Committee on Judiciary was called to order at 8:45 a.m., on Thursday, May 20, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblyman Richard Perkins, District 23

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson opened the hearing on A.B. 688. He informed the committee this was a "trailer bill" to amend A.B. 456.

Assemblyman Richard Perkins, District 23 testified for A.B. 688. The bill came before this committee for one reason. Scott Scherer, the governor’s legal counsel, read the A.B. 456 before the governor was about to sign the bill into law. He informed Mr. Perkins there was a higher standard for domestic violence than there was for the murder situation. Assemblyman Perkins explained he did not want a higher standard for domestic violence. Mr. Scherer suggested a trailer bill to correct the difference. The standard for child custody or visitation in A.B. 688 was if the child being of suitable age could signify his assent and assents to the order. The standard in A.B. 456 was the best interest of the child.

Assemblywoman Koivisto referred to page 1, line 7, and asked what was a suitable age. Mr. Perkins responded the judge would determine each case as to what was suitable a age. There was no statute defining suitable age. Some children were more mature than other children.

Assemblywoman Buckley stated in A.B. 456, the committee said in a first-degree murder case, the court would not enter the order of custody or visitation. In the domestic violence statute there was a rebuttable presumption with the evidence of domestic violence. Custody or visitation was not in the best interest of the child. She asked if that was Mr. Scherer’s concern. Should the two bills be similarly stated or should the murder of the other parent bill be more enhanced than the domestic violence bill.

Assemblyman Perkins recalled his telephone conversation with Mr. Scherer. There was a different standard for domestic violence from the standard for murder of the other parent, which was a form of domestic violence. This was Mr. Scherer’s interpretation who specialized in law. Mr. Perkins yielded to the counsel’s expertise.

Chairman Anderson asked Ms. Lang to address the language problem.

Ms. Lang stated Mr. Perkins described the situation in terms of the standard of the two bills. The governor’s counsel had used convincing evidence in the domestic violence bill as a higher standard than in first-degree murder used the standard of "the best interest of the child." When she first looked at the bill, the bill did not have "the best interest of the child" under first-degree murder. Originally, first-degree murder was premeditated and automatically precluded the visitation rights of the remaining parent. Domestic violence and murder of a parent overlapped. She did not have a problem changing the murder of a parent bill to conform to the domestic violence bill.

Assemblywoman Buckley stated section 2 of the bill was a situation where the parent was convicted of first-degree murder. First-degree murder was murder beyond a reasonable doubt. In a number of domestic violence cases either charges were not filed against the perpetrator or the charges were plea-bargained to a lesser charge. Another section of the same bill stated after a hearing under the family law court, if the court determined if there was domestic violence, the court proceeds. She determined that beyond a reasonable doubt for first-degree murder was a higher standard than finding an act of domestic violence perpetrator guilty.

Chairman Anderson stated the committee would perhaps have a clearer understanding of the bill as more people testified.

Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence testified against A.B. 688. She had testified on A.B. 456. The bill had stated in all cases where one parent killed another parent; the remaining parent would automatically be denied any chance of visitation or custody of their child (ren). She was against domestic violence. She acknowledged there would be circumstances where the remaining parent would be able to visit or to live with the child (ren). A.B. 688 removed the opportunity for the court to examine the situation and make a determination based on the best interest of the child. She gave an example of a possible situation. One parent murdered the other parent. A relative who was a convicted child molester would be able to request custody of the child (ren) and be given custody because there was no law stating a child molester could not have custody. A.B. 456 was not a well-written law. The law brought in a section currently Nevada Law under Nevada Revised Statutes (NRS) 125. NRS 125 stated in the dissolution of marriage if there was clear and convincing evidence of prior domestic violence, there would be a rebuttable presumption against awarding custody to the person who was convicted of domestic violence. This was current statute, NRS 125. A.B. 688 added the same section to NRS 125 A, the custody statute. Currently, if two people were married and had a child in common, domestic violence would be a factor in determining custody. If two people were not married and had a child in common, domestic violence would not be a determining factor. She stated when she read A.B. 456, she did not see where domestic violence issues superceded the conviction of first-degree murder. She wanted the courts to have the opportunity look at the situation and make a decision in the best interest of the child. She felt A.B. 688 brought all the issues back to "square one". She submitted a letter to Chairman Anderson, (Exhibit C) which contained California and New York laws.

Lucille Lusk, representing Nevada Concerned Citizens deferred to Ms. Meuschke’s expertise. Ms. Lusk had the same concerns as Ms. Meuschke. She suggested A.B. 688 could be used to make the bill a rebuttable presumption so the court could look at the situation and rule on it to overcome the presumption.

Assemblywoman Buckley did not see any harm in adding the rebuttable presumption to the first-degree murder. It would be consistent to have rebuttable presumption in the domestic violence and the murder of a parent by another parent.

Ms. Lang stated if the committee was going to have the standard the same for both bills. They could repeal two sections dealing with the murder bill. The original intent of the bill was to have an automatic "no custody" rule for the parent who murdered their spouse. The committee needed to make a decision as to how they wanted to set policy.

Chairman Anderson asked if she was recommending the committee pass only section 2 of A.B. 456. Ms. Lang responded to keep section 3 and 6 and repeal sections 2 and 5 in A.B. 456.

Chairman Anderson asked if it would necessitate passing this bill. Ms. Lang responded the committee would have to amend A.B. 688. This would be a decision for the committee whether they wanted to deal with murder as a separate type of decision and other acts of domestic violence.

Chairman Anderson asked if there was a representative from the governor’s office to represent his issues concerning the trailer bill. There was nobody at the committee meeting representing the governor. He stated the governor had shown concern for the trailer bill. Speaker Dini and Majority Leader Raggio had supported the idea for the committee to process A.B. 688.

Assemblywoman Buckley was meeting with Mr. Scherer on another matter and offered to gain an understanding of what he wanted regarding the bill.

Chairman Anderson stated he did not know if the committee really had to go forward with processing the bill. With all due respect to Speaker Dini and Majority Leader Raggio, Mr. Anderson’s conversation with the Legislative Counsel Bureau (LCB) legal department. The LCB felt their interpretation was correct. Mr. Anderson was unsure and wanted to hear from the governor’s office.

Chairman Anderson closed the hearing on A.B. 688.

Assemblyman Brower thought Ms. Buckley’s had a good suggestion. He felt Scott Scherer’s opinion was important.

Chairman Anderson wanted to consider Scott Scherer’s interpretation along with the committee’s interpretation. He would leave the question "at the call of the chair" for later today "behind the bar" or the committee would take action on the bill tomorrow.

Donald O. Williams, Committee Policy Analyst, stated S.B. 30 was Senator Amodei’s bill to increase the monetary threshold for cases in justices’ courts. Assembly Amendment 862 limited the bill to increasing the threshold for small claims from the existing level of $3,500 to a new level of $5,000. The Senate did not concur with Amendment 862. The committee needs to decide to recede or not to recede with the Senate.

Chairman Anderson stated the committee should not recede and go to a conference committee. He had a conversation with Senator Amodei. Mr. Anderson felt the differences could be resolved. He mentioned the bill would impact the justice and municipal courts in the Eighth Judicial District, Clark County. He felt the differences could be resolved in the first conference. He chose the "first team" to represent the committee. Ms. Buckley would be chairwoman of the first conference committee with Assemblymen Nolan and Claborn on her committee.

Mr. Williams proceeded with S.B. 242. The bill was a Senate Committee on Human Resources and Facilities’ bill on behalf of a constituent of Senator Raggio to keep social security numbers confidential when included in divorce judgments and child support orders. Assembly Amendment 767 included the Welfare Division’s language to comply with the federal welfare reform law. The Senate did not concur with Amendment 767. The committee needs to decide to recede or not to recede with the Senate.

Chairman Anderson had a conversation with Myla Florence, Welfare Administrator, was concerned with saving the bill. She recommended receding from the amendment to gain the larger issues in the bill. He would respect her recommendation and recede from the amendment.

Mr. Williams discussed A.B. 53, Assemblyman Carpenter’s bill. The bill concerned unlawful death or bodily harm on school property with Senate Amendment 781. Although the Assembly Committee on Judiciary considered this amendment on May 18, 1999, the committee had received new information from Michael Pescetta and Ben Graham regarding "felony child abuse" (Exhibit D) being included in the bill and the amendment.

Chairman Anderson asked Ms. Buckley to explain the situation for the committee.

Assemblywoman Buckley stated Senate Amendment 781 had nothing to do with Mr. Carpenter’s bill. The amendment initially looked okay to her. After the committee meeting, she received a letter from a federal public defender which she shared the Assemblymen Anderson and Carpenter. The amendment was given to the Clark County District Attorney’s Office. She received a response from William T. Koot, Chief Deputy District Attorney Clark County. She sent Mr. Koot’s response to the federal public defender and told him to get back to her today by noon. She wanted to know the consequences of moving child abuse subsection B to subsection A in the statutes. When she received her answer, she would share the response with the committee.

Chairman Anderson felt the committee should be fully informed to process each bill. He knew he would have to make some decisions by himself. If he had the luxury to discuss a situation with the committee, he would. He stated the procedure on the Assembly floor would change starting today. There will be a blue folder on each assemblyman’s desk in the Assembly. The folder would contain all the amendments from the Senate. Keep the amendments in your folder for your reference as an amendment was considered. The pace in the Assembly would increase. If a member had a concern with an Assembly Committee on Judiciary amendment, speak to Mr. Anderson so the committee would be able to meet "behind the bar" to answer any questions or resolve a problem as opposed to discussing the question on the Assembly floor.

Assemblyman Carpenter stated the Senate added the child abuse amendment in regard to a case the Nevada Supreme Court ruled. Chief Justice Robert E. Rose suggested the amendment. Associate Justice A. William Maupin spoke with members of the Senate requesting the amendment.

Chairman Anderson’s personal opinion was to concur with the Senate on the amendment. He felt the committee made the right decision on Tuesday, May 18, 1999. He asked Ms. Buckley if that was consistent. She responded it was.

Assemblyman Carpenter agreed with Chairman Anderson. With the addition of child abuse, next session the drafters could insert the felony child abuse in the bill.

Mr. Williams stated A.B. 71 was Ms. Buckley’s identity theft bill. The Senate had added Senate Amendments 900 and 1009. The committee would need to decide to concur or not to concur with the Senate.

Assemblyman Buckley would recommend the committee concur with the Senate on the bill. She offered the amendments when she testified before the Senate. Senator Raggio’s name was added to the bill as a co-sponsor at his request. The section regarding the freezing of a victim’s credit report was deleted. The reason for deleting that section was the victim’s credit account was automatically flagged. If the victim closed the account, legitimate retailers could not do skip traces to locate people who were skipping out on their obligation to pay their debt might lead to additional fraud. Ms. Buckley agreed to the flagging to evaluate how the process worked over the interim between legislative sessions.

Mr. Williams submitted amendments 900 and 1009 to A.B. 71 (Exhibit E.)

Chairman Anderson heard no opposition from the committee. He would concur with the Senate on the two amendments to A.B. 71.

Mr. Williams stated A.B. 82 was a bill from the Mental Health and Mental Retardation Division on compensation for members of sanity commission with Senate Amendment 901 (Exhibit F). Amendment 901 resolved a conflict with A.B. 305. There were no substantive amendments. The amendment changed the reference to the administrator of the division of mental health and developmental services from the mental hygiene and mental retardation.

Chairman Anderson would concur with the Senate on A.B. 82.

Mr. Williams stated the amendment to A.B. 159 was a more substantive amendment. Assemblywoman Gibbons sponsored the bill prohibiting collection of life insurance benefits by certain murderers. The question for the committee was to concur or not to concur. (Exhibit G) explained the amendment. The amendment replaced the original bill. The amendment provided that a person who is a ‘culpable actor’ in the felonious and intentional killing of a decedent may not inherit from the decedent or accrue other benefits based upon the death of the decedent. The proponents of A.B. 400, the probate code bill, contributed to drafting Senate Amendment 158 and were supportive of the language in the bill regarding wills and estates.

Chairman Anderson stated the committee had seen probate code bills three sessions in a row. He asked Ms. Lang for her opinion.

Ms. Lang responded she did not have anything to add regarding the amendment.

Chairman Anderson mentioned he did not have anyone approach him regarding problems with the amendment.

Assemblyman Carpenter asked if there was a hearing on the amendment. Mr. Anderson responded yes. He said the probate attorneys did not appear at the Assembly Committee on Judiciary. The probate attorneys became involved when they learned there were some questions regarding inheritance.

Chairman Anderson observed the low amendment number and mentioned the length of time the bill took to return to the Assembly Committee on Judiciary.

The Senate had spent time writing the amendment.

Chairman Anderson would concur with the Senate on A.B. 159.

Mr. Williams mentioned the last bill to concur or not to concur with the Senate on today was A.B. 543, Mr. Gustavson’s bill regarding lawsuits against gun manufacturers. Senate Amendment 905 was in (Exhibit H). Amendment 905 revised the application of the bill. Under the amendment, the provisions of the bill only applied to lawsuits commenced on or after the effective date of the act. The bill currently applies to pending lawsuits.

Assemblyman Gustavson was present at the Senate hearing on his bill. He did not have a problem with the amendment. He recommended the committee concur with the bill as amended.

Chairman Anderson asked Ms. Lang to explain if he had filed a lawsuit against a gun manufacturer today, how would the bill as amended affect his lawsuit.

Ms Lang responded the bill would apply to lawsuits filed after the effective date. The bill would not affect any lawsuits already filed.

Chairman Anderson stated the original intent of the bill was if a person filed a lawsuit the State of Nevada would take over the lawsuit. With the Senate amendment the bill applied to lawsuits after the effective date of the bill.

Assemblyman Brower asked if the bill was effective upon approval. Chairman Anderson responded, "yes."

Chairman Anderson thanked Mr. Gustavson for having requested the bill. The committee introduced the bill. Mr. Gustavson thanked Chairman Anderson for his help with the bill.

Chairman Anderson would concur with the Senate on A.B. 543.

He mentioned there were nine or ten bills left to concur or not to concur with the Senate. He reminded the committee of Attorney General Del Papa’s high tech crime bill on Friday, May 21, 1999.

Mr. Williams mentioned the committee had not heard about A.B. 401, the bill to increase the family court judges in Clark County. The bill was in the Senate Finance Committee. There were several bills pending that could be directed to this committee, but it was too early to tell at this moment.

Chairman Anderson recessed the committee to the call of the chair at 9:48 a.m.

RESPECTFULLY SUBMITTED:

Ken Beaton,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: