The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:10 a.m., on Wednesday, February 10, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Senator Raymond C. Shaffer, Clark County Senatorial District No. 2

Senator Mark E. Amodei, Capital Senatorial District

STAFF MEMBERS PRESENT:

Jo Greenslate, Committee Secretary

OTHERS PRESENT:

Senator Raymond C. Shaffer, Clark County Senatorial District No. 2, testified that in southern Nevada, many transactions take place between private individuals, which prompted drafting of S.B. 96. An example given by Senator Shaffer was of an individual who owns a parcel of land and sells it to another individual, and the seller carries the loan papers. Once the loan has been paid in full, often the release by which the new owner has free title to the property is not processed in a timely manner. He said the penalty for such a practice is $100, which is not sufficient to act as a deterrent.

According to Senator Shaffer, S.B. 96 would raise the penalty from $100 to $500 to act as a better deterrent. Additionally the individual that must take legal action would be reimbursed for legal costs. Senator Shaffer said he was aware of proposed amendments to the bill, and he is willing to work with the industry in order to expedite timely recordings of mortgages and deeds of trust once the debt has been satisfied.

Robert R. Barengo, Lobbyist, Nevada Consumer Finance Association, stated his association is not opposed to the concept of S.B. 96, but he did have a couple of technical questions. He referred to chapter 106 of Nevada Revised Statutes (NRS) that deals with real mortgages. Mr. Barengo pointed out S.B. 96 goes into another section of chapter 106 of NRS titled "Assignments; Subordination and Waivers as to Priority; Discharge and Extinguishment," and following chapter 106 of NRS is chapter 107 of NRS that is titled "Deeds of Trust."

Mr. Barengo suggested that what Senator Shaffer was talking about is the deed of trust and the failure to execute the reconveyance of the deed of trust. He asserted that when unsophisticated private parties make loans between themselves, they are often unaware of the necessary paperwork. Continuing, Mr. Barengo explained there are provisions under "Deeds of Trust," NRS 107.200, regarding debt secured by deed of trust, and he wants to ensure that all applicable provisions are amended to be consistent both in the mortgage and deed of trust chapters.

Chairman James suggested to Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau (LCB), that Mr. Barengo would like the same provision for reconveyance of a deed of trust into the mortgage statute together with increasing the penalty in the deed of trust statute and allowing costs of suit.

Mr. Barengo concurred and added he wanted to ensure the number of days is equal in both the mortgage and deed of trust statutes. Mr. Wilkinson clarified the number of days mentioned in section 1 of S.B. 96 has not changed; it has merely been rewritten in clearer, more modern language.

Chairman James requested that Mr. Barengo meet with Senator Shaffer and Mr. Wilkinson and return to the committee for a work session, with bill language acceptable to all concerned.

Marty LeVasseur, State President, Nevada Association of Mortgage Brokers, commented he generally agrees with Mr. Barengo and would like to work with him in amending the language of S.B. 96. Mr. LeVasseur concurred with Mr. Barengo’s observation that the private notes and deeds of trust that do not get reconveyed cause a problem for other exchanges of title. He reiterated that he would like to work with the committee on this bill, because in his opinion, there is a simple solution.

There being no further testimony, Chairman James closed the hearing on S.B. 96 and opened the hearing on S.B. 30.

Senator Mark E. Amodei, Capital Senatorial District, testified S.B. 30 seeks to increase the dollar jurisdictional limits in justice court actions from $3,500 to $5,000 in actions for money only, and from $7,500 to $10,000 in a laundry list of actions delineated in section 2 of the bill. Senator Amodei stated he is sponsoring S.B. 30 for two reasons. First, he is of the opinion that monetary limits in statute should be revisited occasionally, and secondly the increased amounts in the bill increase the access of people to the judicial processes afforded by the justice court system in Nevada.

Senator Porter inquired why S.B. 30 is necessary and how it would benefit citizens of Nevada. Senator Amodei answered smaller cases that can be handled in justice court are more cost-effective than hiring a lawyer and litigating in higher courts.

Responding to a question from Senator Wiener, Senator Amodei replied the last time the monetary limits of S.B. 30 were raised was in 1993. He added there is a two-part function; one is the base line and inflation since 1993, and the second is what the business market has done in terms of how disputes are evolving and what the cost-effectiveness is in terms of court costs.

Valerie J. Cooney, Lobbyist, Nevada Trial Lawyers Association, testified on behalf of S.B. 30. Ms. Cooney mentioned the significant benefit of S.B. 30 to taxpayers and people who have potential claims. Raising the jurisdictional limits of the lower courts will mean that certain cases will be easier to be tried and heard, which will result in a decreased cost to taxpayers. Ms. Cooney advised the current cost to taxpayers for the civil jury trial process in the district court is approximately $5,000 a day. Cases having a damage claim of $7,500 or slightly more are currently heard in district court. Such cases can often take up to 4 days from the day of commencement to the day of verdict for a potential cost of $20,000.

Ms. Cooney pointed out that many of the cases that can be handled in small claims courts can be managed for minimum expense and are resolved in one-fourth to one-fifth of the time it takes a case to go through the district court system. She stated it is time to revisit the jurisdictional maximums and increase them, to move cases into justice court and into small claims court, and move them out of the district court. Ms. Cooney mentioned there are those who are concerned that shifting these cases into justice court will increase the potential cost of jury trials. One suggestion by a local district court judge regarding that concern was for justice courts to adopt rules such as the Rules of Civil Procedure mandating certain cases to be diverted to mandatory arbitration. In conclusion, Ms. Cooney urged passage of S.B. 30.

Senator Care inquired whether Ms. Cooney had discussed the bill with a representative of the justices of the peace, because this bill will increase their caseload. Ms. Cooney replied that discussions have taken place between members of her organization and justices of the peace. In general, the justices of the peace are in support; however, there are some concerned about the increased potential for jury trials. Her suggestion to that concern is to adopt rules, as she mentioned earlier, to move certain cases into mandatory arbitration.

Responding to a comment by Chairman James regarding filing fees, Ms. Cooney remarked that none of the costs for filing suit are raised by S.B. 30.

There being no further testimony, Chairman James closed the hearing on S.B. 30 and opened the hearing on S.B. 114.

James F. Nadeau, Lobbyist, Captain, Patrol Division, Legislative Liaison, Washoe County Sheriff’s Office, introduced James R. Ganyon, Captain, Detention Operations, Washoe County Sheriff’s Office. Captain Nadeau testified that S.B. 114 deals with assessing a fee for the booking of inmates within a jail setting. He mentioned that the 1995 session passed legislation that allows prisoners to be charged for room and board. Captain Nadeau explained that S.B. 114 is an extension of that legislation inasmuch as there are people who are booked into the Washoe County facility, do not stay in the facility, but do cost taxpayers money for the booking fees.

Captain Ganyon concurred with Captain Nadeau’s remarks, and added currently prisoners are charged a fixed fee for board and room, and out of that only a small amount of the cost is recovered from the inmates. Costs are incurred during the booking process when an individual enters the facility for the medical screening and court services provided. Captain Ganyon advised that over the last several years, bookings have ranged from 23,000 to 25,000 per year. By dividing the wages of the booking, medical, and court services personnel by the total number of bookings, the figure derived is $67.08 per inmate, for the booking process alone. In conclusion, Captain Ganyon asserted that S.B. 114 would help the detention center recover booking costs.

Responding to a question by Senator Porter, Mr. Wilkinson explained the provision requiring a two-thirds majority vote, as noted on the front of S.B. 114, is required whenever a section of a bill will increase or generate any public revenue. He added S.B. 114 is a measure that will generate revenue for a local government.

Captain Nadeau pointed out that four things have to happen to enable the detention center to collect a booking fee. An individual must: 1) be arrested; 2) be booked into a facility; 3) be convicted; and 4) have the ability to pay.

Senator Wiener mentioned a provision of the bill that states the prisoner shall pay, but if he cannot pay, he can be put into a supervised work program. She inquired how the cost recovery is determined under that type of program and what the ratio is between those who work off the fee and those who pay the fee. She also asked whether there is a cost for releasing a prisoner.

Captain Ganyon responded that if the release factor were considered, it would probably increase the $67-per-inmate charge. Captain Nadeau added as far as recovery of the cost, the statute allows a prisoner to work off the fee at $8 per day. He asserted the biggest benefit derived from charging prisoners for room and board is that people realize if they go to the Washoe County Jail, they will have to pay some of the cost associated with their incarceration. Captain Ganyon agreed to provide the cost of releasing a prisoner to Senator Wiener by the committee’s next work session.

Senator Care queried what the procedure is for determining whether a prisoner is indigent or nonindigent. Captain Nadeau stated he is not certain of the exact standard, but there are a series of questions and an application to determine if the inmate is indigent or nonindigent. He pointed out that S.B. 114 applies only to nonindigent prisoners.

Responding to a question by Senator Porter regarding what percentage of fees that are charged are actually collected, Captain Ganyon answered the percentage of fees collected for board and room is very small, consisting of approximately $15,000 a year from total inmates incarcerated. Captain Nadeau said he did not have the figure for the total amount owed, but estimated the percentage collected to be 25 percent at most.

David S. Gibson, Lobbyist, Clark County Public Defender, and Nevada Attorneys for Criminal Justice, stated that in general, the organizations he represents are opposed to S.B. 114. He said the majority of inmates currently in the Clark County Jail or released within recent memory have been represented by his office and have been determined to be indigent individuals. Upon release, most prisoners, if employed when going into jail, no longer have the job. Mr. Gibson’s concern is that many of the prisoners being represented by his office are in jail due to the domestic laws and other situations where they are being incarcerated for 12 to 24 hours, because they have reacted badly to personal problems that are often money related. In Mr. Gibson’s opinion, added fees may exacerbate the problem.

Another point raised by Mr. Gibson is that prisoners already perform community service for nearly every crime they commit. He was doubtful they would be able to find a paying job in order to pay their booking fees.

There being no further testimony, Chairman James closed the hearing on S.B. 114 and opened the hearing on S.B.  115.

Captain Nadeau introduced Mike Haley, Captain, Detention Services Division, Washoe County Sheriff’s Office, stating the Detention Services Division oversees the "Alternatives to Incarceration" program. Captain Nadeau explained that under the Alternatives to Incarceration program, individuals sentenced to the Washoe County Jail are utilized on work programs throughout the community rather than being housed in jail. He commented this is a cost-savings program to the county and the facility, and generally the work program participants pay an administrative fee of approximately $25 to process their application and a daily fee of $8 for program administration.

Captain Nadeau asserted this program has been so successful that courts are now sentencing individuals directly to the Alternatives to Incarceration program. Previously individuals were sentenced to the Washoe County Jail and then placed into the program. He clarified that his office is of the opinion it is still entitled to collect the daily administrative fee and the application-processing fee but wants to ensure the statute states that clearly.

Captain Haley testified there are currently 627 people outside the Washoe County Jail participating in the Alternatives to Incarceration program. He remarked that number exceeds the design capacity of the jail, and if they were to bring program participants back into the jail, it would be hugely overcrowded. Therefore, they are constantly looking for alternatives for people who are arrested so that they may stay with their families, work, and perform the tasks the facility would normally pay others to do. In conclusion, Captain Haley stated S.B. 115 merely changes the language to ensure current procedures of the Washoe County Jail are clearly indicated in the law by adding alternative programs to the appropriate chapter of NRS.

There being no further testimony, Chairman James closed the hearing on S.B. 115 and opened the hearing on S.B. 118.

Glen Whorton, Chief, Classification/Planning, Department of Prisons, testified that S.B. 118 is a measure proposed by the Nevada Department of Prisons. He explained Classification/Planning is responsible for the management of inmate sentences as well as placing them within the Department of Prisons. Chapter 176 of NRS allows for one of two documents to be used for determination of sentencing: "A Judgment of Imprisonment" or a "Minute Order." Mr. Whorton stated his division has a problem with use of the Minute Order. He said the Minute Order is the usual process used by the Clark County Jail and the Clark County courts to commit an individual to the Nevada Department of Prisons.

Mr. Whorton distributed a sample Minute Order (Exhibit C), and remarked it is a typical Minute Order. It is hand-written, a judge does not sign it, and it is completed at the time of sentencing in the courtroom. The problem, according to Mr. Whorton, is that it is often illegible or difficult to read, there are frequent errors in the minimum and maximum sentences, in the number of county jail credits that are applied, and the name of the inmate. Mr. Whorton explained that S.B. 118 would modify chapter 176 of NRS so that the Minute Order is no longer used as the authority for incarceration of an individual.

A correction Mr. Whorton mentioned in the bill is a change in the language in section 1 from "judgment of imprisonment" to the conventional language used in the system: "judgment of conviction." Additionally, he requested that section 2, paragraph 2 be restored.

Mr. Wilkinson commented the reason that paragraph was removed is because NRS 176.105 already provides what a judgment of conviction must include and has identical language to that being removed. Mr. Whorton remarked that would be suitable.

There being no further testimony, Chairman James closed the hearing on S.B. 118.

The Chairman introduced Michelle Van Geel, Research Analyst, Research Division, Legislative Counsel Bureau, who was sitting in for Allison Combs, Committee Analyst, Research Division, Legislative Counsel Bureau.

Chairman James opened the hearing on S.B. 123.

David W. Wasick, Administrative Counsel, (Nevada) Supreme Court, testified the changes drafted clarify the confusing area that has caused a number of appeals to be filed. Based on the Nevada Supreme Court’s review of case law and concerns brought forward by prosecutors and defense attorneys, Mr. Wasick stated the Nevada Supreme Court made two changes on the guilty plea agreement. The first has to do with the waiver of rights. Presently there is a conditional waiver of rights which allows a defendant to appeal from a judgment of conviction pursuant to a guilty plea. He said they added language creating an unconditional waiver that clarifies where a person stands after he or she pleads guilty.

The second change, according to Mr. Wasick, regards having the defense counsel inform the defendant of his or her right to appeal on the procedures for filing an appeal. Mr. Wasick explained these changes are consistent with federal constitutional law and Nevada law. He asserted the law is not being changed, but the changes will ensure finality in the criminal proceedings.

Responding to a question by Chairman James, Mr. Wasick offered the following example. If a defendant signs a statement which reads, "I unconditionally waive my right to appeal," and the defense attorney files a notice of appeal for him in the supreme court, whether or not that unconditional waiver of the right to appeal was valid or invalid would be the first thing considered by the supreme court versus the existing conditional waiver of the right to appeal. It reduces the number of things the court will consider. If the unconditional waiver were valid, then the court would not look at any of the other issues raised after an unconditional waiver.

In summary, Mr. Wasick remarked S.B. 123 reduces the cost, time, and effort of the court, the state, and the public defender’s office.

Senator Washington requested clarification of the statement on page 4 of S.B. 123 under "Waiver of Rights" that states "I (do or do not) unconditionally waive my right to appeal my judgment of conviction." He said it was his understanding that the statement was unnecessary and should be deleted from the bill.

Mr. Wasick replied inclusion of that statement puts case law into the plea agreement to clarify whether or not the defendant wishes to waive unconditionally his or her right to appeal the judgment of conviction. This creates a record of the defendant’s choice. He mentioned the case of Cruzado v. State, 110 Nev. 745 as an example. He stated the defendant: 1) unconditionally waived his right to appeal; 2) the defense attorney appealed it anyway; 3) the supreme court held that a defendant may unconditionally waive his right to appeal; and 4) the supreme court went on to say that the district court judge did not sentence the defendant pursuant to the plea agreement, and it was going to order the district court judge to sentence the defendant to the plea agreement which was bargained.

Responding to a question by Chairman James, Mr. Wasick stated the lined-out language of paragraph 6 on pages 3 and 4 of S.B. 123 has been incorporated into lines 9 through 23 on page 3 of the bill. He affirmed Chairman James’ remark that previously there was no form that included an unconditional waiver that would waive the appeal rights. Mr. Wasick advised, however, district attorneys were writing in unconditional waivers. Therefore, S.B. 123 seeks to formalize the waiver to gain consistency throughout the state.

Senator Care referred to an electronic mail message (e-mail) from JoNell Thomas (Exhibit D), containing the comment:

Senator Care requested Mr. Wasick comment on that statement.

Mr. Wasick acknowledged Ms. Thomas’s concern that defense attorneys have obstacles when it comes to getting defendants to sign plea agreements. However, Mr. Wasick is of the opinion that a defendant should know to what he or she is agreeing. He asserted that clarification of what the defendant is agreeing to is not a disadvantage to the defense bar or the state.

Mr. Gibson, representing Clark County Public Defender’s Office and Nevada Attorneys for Criminal Justice, stated representatives of Nevada Attorneys for Criminal Justice were unable to attend the meeting but wanted additional time to present alternative language for the waiver to the appeal. Chairman James informed Mr. Gibson he could return with alternative language at the committee’s next work session.

There being no further business to come before the committee, Chairman James adjourned the meeting at 10:30 a.m.

RESPECTFULLY SUBMITTED:

Jo Greenslate,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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