The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:12 a.m., on Monday, February 15, 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Maurice Washington (Excused)

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman James opened the meeting with the introduction of a bill draft request (BDR).

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Shirley Penzel, Projects Chief, Real Estate Division, Department of Business and Industry, spoke in favor of the bill, by stating she administers the law of all subdivisions in the State of Nevada, pursuant to chapters 119, 199A, and 119B of Nevada Revised Statutes (NRS).

Ms. Penzel stated the primary purpose of this bill was to clarify the existing statutes, which were enacted at different times, to make them more consistent. It will allow the administrator to ask for additional information where necessary to protect the interests of the citizens, and allow for exemptions of certain provisions of the law if they do not apply. She stressed that primarily this was prevalent in time-share projects where there were different types of programs and projects that come up almost daily. The laws could not be kept current fast enough to address all the different offerings. Ms. Penzel asserted that having the provisions on page 5, section 4, subsection 1, paragraph (m), lines 19-21, and page 7, section 6, subsection 12, lines 8-9: "… or documentation as the administrator deems necessary to carry out the provisions of this chapter;" allows for requests of additional information in those circumstances where there was not a specific provision allowing for submittal of documentation or other information.

Senator Wiener stressed that she noticed a lot of the language changes from "division" to "administrator" and wanted to know the distinction.

Ms. Penzel said that perhaps the language changes were to make sure control remained with a higher authority, such as the administrator.

Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, commented he thought the language was changed from "division" to "administrator" because it was a specific person. Usually it would be the administrator who would be responsible. The control could still be delegated, but it would be appropriate for the administrator to be the person with that power.

Chairman James questioned why the original statutes which stated, "the division by regulation," was changed to "the administrator" and removed the procedure by which regulations are adopted. Ms. Penzel responded it was difficult to propose regulations when it was unknown what would come up next. For example, the regulations do not have specifics that address time-share point-based systems, clubs, programs or anything like that. The creativity of the developers was considerably faster than the ability to amend the laws. She stated it was prevalent in states that have any kind of comprehensive disclosure requirement, which Nevada does. In other states the administrator, commissioner, division, or department has the ability to ask for additional information that may be relevant; that was not specifically set forth in the law or regulation.

Senator Wiener inquired if it was because this was more timely or it was a change in industry that gives the administrator broad discretion to ask for the documentation, and if the division would still use regulations for other real estate.

Ms. Penzel responded that for one thing all three of the NRS chapters were different; they were not consistent. This bill would make all three existing chapters consistent. She said they all have the ability to ask for additional information, but it was never made clear. Ms. Penzel said she thought the bill would enable them to make better decisions on products allowed to be sold in this state. She asserted the requested change was reasonable. By the same token the process allowed for the administrator to exempt anything that may not apply. Like the provision in a set of "15Rs" in a project in Florida, it does not have any relevance to the way we do things here. She stated so long as we had the ability to disclose and to ask for the information to help make decisions, she believed everyone would be better off.

Senator McGinness said he appreciated that they have that additional discretion and thought those agencies need that, but it also centers additional power in the administrator. He noted it said in the bill, "… documentation as the administrator deems necessary to carry out the purposes of this chapter." Senator McGinness wondered if there is an appeal over someone in Ms. Penzel’s position (the projects chief). Ms. Penzel replied there were appeals to the administrator, but as the project chief it would be her call to ask the administrator to decide. If somebody complained about something she requested, that complaint would go to the administrator. The administrator would make the decision or they could also go to the real estate commission.

Senator McGinness echoed Senator Porter’s concern that this may be a reasonable administration, but 2 years from then there may be new people, and that same fairness may not still be there.

Senator Care asked Ms. Penzel to tell the committee what she meant by such other information or documentation where the developer says he does not have to disclose that.

Ms. Penzel responded that chapters 119, 119A, and 119B of NRS all have a list of documentation required to obtain a public-offering statement or property report; that information was anywhere from 10-12 items set forth in the act. There might be something not in the NRS that would be relevant as in a time-share project. The time-share laws provide for rights, use and fee-simple interest programs. Now there are point-based programs, clubs, all types of programs, cruises and vacations. She pointed out strange situations under time-sharing and other jurisdictions have appeared; the laws do not address any of them. These programs were so unique there was no way to keep ahead of them. She stated with this bill her office could ask for specific documentation that would enable them to make decisions.

There being no further testimony, Senator James closed the hearing on S.B. 116, and opened the hearing on S.B. 149.

Ed Flagg, Lobbyist, President, Nevada Corrections Association, stated this bill was designed to make it a felony for a prisoner that throws feces, urine, semen, spit, blood or other bodily fluids on the correctional staff, a behavior known as "gassing," which happens nationwide.

Linda Avilla, Correctional Officer, Ely State Prison, Department of Prisons, told her story of being a victim of a gassing attack in January 1998. She stated she was hit along the left side of her face with a mixture of body fluids as she passed a towel through an opening in the door. Then as she attempted to close the opening before leaving, trying to keep her face turned away, she was hit again, an experience that will live with her forever, she said. The fluids consisted of excrement, urine and other body fluids, that were in her hair, eye and mouth. The fluids ran down her left arm and part of her body. The prisoner, who has acquired immunodeficiency syndrome (AIDS), was never punished for his attack, nor for any attacks he has made on others. In fact, this prisoner had a history of making "shanks" and other prison-made weapons.

Ms. Avilla said she has had several blood tests since her attack and has not tested positive for human immunodifiency virus (HIV) or hepatitis. She stated she would have to continue to have AIDS tests for the next 10 years before she knows if she is clean. "I’m 54 years old," Miss Avilla said, "it’s not a good retirement."

Walter R. Tarantino, Lobbyist, Attorney, Nevada Corrections Association, said such attacks are increasing, exposing more prison employees to sometimes deadly communicable diseases. This is becoming the assault of the future in the prison system.

Mr. Tarantino said S.B. 149 would define the propelling of excrement and bodily fluids as a Category B felony. He pointed out the bill would require prison administrators, on state, county or local levels to investigate each incident and forward the evidence to the attorney general. That would ensure such attacks do not go unpunished.

Mr. Tarantino stated that within weeks of the incident, the Nevada Corrections Association and himself had contact with the Department of Prisons (DOP) administration, the administration at Ely State Prison, and the inspector general’s office, with seeking assurance for two things. First was that Ms. Avilla would be given all the medical attention needed and/or required, including testing for the inmate; this was done. The second promise was that the inmate would be prosecuted, which did not happen. He asserted that right now any action required a referral from the department; without that referral no state or other agency will take action.

The use of prison-made weapons leaves visible marks that are apparent, said Mr. Tarantino. Such attacks were immediately medically treatable. An attack with bodily fluids was as dangerous and was as much as an assault. The real tragedy of this type of attack is that communicable diseases contained in the bodily fluids may not show up in testing for a period of years. Mr. Tarantino emphasized, "This was the assault of the future in the prison system. Guards fear they will contact a disease or, worse yet, bring it home to their families."

Chairman James inquired as to why the Department of Prisons did not refer this matter to the attorney general (AG).

Mr. Tarantino replied that letters were written to the department and to the AG’s office. The only response was in June from Attorney General Del Papa saying they were aware of the incident and waiting for a referral. Additionally, the letter explained that the inmate was transferred to the Northern Nevada Correctional Center, but his files and records were not transferred with him. Later he was transferred back to Ely State Prison, and to this day Mr. Tarantino does not know where the records and the investigative file reside.

Chairman James inquired why the AG required a referral in this situation, especially knowing a crime has been committed and there are witnesses. Mr. Tarantino responded it was his understanding that the referral would include the investigative packet. He said he did not believe any prosecutorial body could make a proper evaluation without the investigative file. He noted in reading the letter from the attorney general nothing had been received from DOP in writing, so there was nothing that could be done. The letter referred to was copied to the DOP, other than that, he stated he was not privy to any other correspondence.

Chairman James referred to NRS 201.205 enacted in 1993, which addresses the intentional transmission of HIV and asked if Mr. Tarantino had looked at that statute, which provided for a Category B felony of 2 to 10 years imprisonment. The Senator pointed out S.B. 149 would create the same penalty, and a gassing incident could be prosecuted under existing law.

Mr. Tarantino said he did not believe that statute specifically directs or mandates the entity to submit a referral as the bill does. When the bill draft went for fiscal note, the department submitted a memo declaring one prosecution in 1997 and one prosecution in 1998 for a major violation of substance propelling, which refers to the specific statute referenced. Mr. Tarantino suggested these incidences happen on a more frequent basis than once a year. This legislation was needed to ensure that in each case where a gassing occurs, there would be an investigation, and a report submitted.

Senator Porter inquired about looking at a new approach to protecting the employees through some special equipment.

Ben Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association, said the prisons currently have gowns, masks and gloves, but these cannot be worn everyday. The gassing happens when walking by a cell, or walking across the yard. Airtight armored suits would be needed for protection. He pointed out that if it were known there was a potential hazard, then precautions would be taken, but on a daily basis cells must be opened for any number of reasons.

Senator Care queried what discretionary powers a warden has to punish an inmate conducting such activity; and would it include independent contractors, visitors and others.

Mr. Graham stated he saw no objection to allowing county corrections to come under the bill. The private sector were not sworn officers of the State of Nevada; there is a difference. He pointed out as for visitors, he was sure the inmate would have been prosecuted, due to a different standard. There was a disciplinary process that goes through the court of penal discipline. The decision of the discipline committee could be appealed to the warden. The warden had the authority to forward the appeal to the office of the inspector general for investigation.

Senator Wiener read on page 1, lines 4 and 5 where it stated "… prisoner who is in lawful custody or confinement, other than residential confinement …." She stated this looks like an exclusion for those who were confined, yet that was what was being talked about. Senator Wiener also directed attention to page 2, lines 8 and 9, "… each employee of the prison who was involved …," and asked if that meant direct contact. She also wanted to know what "involved" meant.

Mr. Tarantino suggested the Legislative Counsel Bureau (LCB) could speak to the rationale as to why the residential confinement exclusion was there. Mr. Wilkinson responded he believed the bill addressed situations that occur in a correctional facility. The bill could be expanded, but the crimes that were in chapter 212 of NRS exclude residential confinement and sexual contact among people. He stated he was not sure whether an employee of the DOP would have contact with an offender at home, but maybe a representative from parole and probation could address that point.

Mr. Tarantino said the intent was to aid the officer who would suffer a gassing incident. The exclusion would not be for witnesses or anyone who would be submitting corroborating statements; it was intended to protect the officer who was involved in the incident. He stated there would not be an objection to clarifying that language to include the words, "was a victim," so it was clearly understood.

Ms. Avilla added that the DOP failed to follow up on her gassing incident, and she was never offered any time off or counseling. She noted that although her uniform had been cleaned, she took it home and burned it along with the other garments she wore the day of the incident. There was no support offered to her or to other officers who have been victims of gassing, which was why the bill was needed.

Senator Wiener requested information regarding the frequency of such gassing incidents.

Mr. Graham said an incident has happened to him three or four times. The Department of Prisons states there were 143 incidences in 1996/97, and in 1997/98 there were 134 incidences. The total incidences have not been broken down to specifically identify gassing. He stated any incident by an inmate was written down as an assault. The only way Ms. Avilla’s particular incident was identified as gassing was because she notified the DOP.

Senator McGinness noted a letter from the AG (Exhibit C) asked that section 3 on page 2, be removed because it removes prosecutorial discretion.

Mr. Tarantino responded the intent was not to eradicate or erode the discretionary ability of the prosecutorial body. He had no objection to striking the language. There was no intent to deter any prosecutorial body from doing its job and utilizing discretion based on the facts at hand.

Senator McGinness wondered if a communicable disease was actually deliberately transmitted, then could it be made a capital punishment.

Chairman James said the language in subsection 3 does not take away discretion, because discretion was embodied in the allowance that there is a need to find probable cause to proceed. If probable cause is found, the bill prohibits plea-bargaining, which is the same language as the Driving Under the Influence (DUI) statute, already on the books. Senator James pointed out that this language is a policy question of whether or not it should be included with this crime. Discretion would be like DUI offenses where prosecution occurs if there was a crime that had been committed or probable cause to believe a crime had been committed; then it was not a plea-bargainable offense. He pointed out there was also the statute that outlines attempting to transmit HIV, which can be used in these cases when there is the HIV question.

Steve Barr, Lobbyist, Legislative Coordinator, Nevada Corrections Association introduced a proposed amendment to S.B. 149 (Exhibit D), stating it pertains to a clarification of NRS 209.4465. The wording in that statute relates to when "good-time credit" was awarded to inmates. Mr. Barr emphasized that currently if an inmate was serving some type of disciplinary sanction, he was also receiving good-time credits at the rate of 10 days a month. He clarified after the prisoner had already been sanctioned he was still being rewarded for misbehavior. Mr. Barr stated what was sought was clarification of the wording in S.B. 149 as follows:

Mr. Barr continued that this proposed amendment would have no fiscal impact as it was just a clarification or revision of an existing statute that apparently was unclear.

Chairman James clarified with Mr. Wilkinson that he had already asked for the corrections association amendment, and asked why the amendment was not included in the bill. Mr. Wilkinson responded the way he read the statute it would seem the inmates would not be earning those credits if they did not perform in a faithful, orderly, and peaceful manner; or if they had an infraction of the regulations, or of the law of the state, then the prisoner would not earn those credits. He stated apparently the DOP does not read the statute that way. Mr. Wilkinson said he was unclear as to why the statute was interpreted in that manner. It seemed those credits should simply not be given, rather than being given and then forfeited through the process set forth in NRS 209.451.

Mr. Barr commented that was why the association requested the clarification, so there would be no confusion.

Anne B. Cathcart, Special Assistant Attorney General, Office of the Attorney General, referred to the AG’s letter in support of S.B. 149, with two proposed amendments:

Ms. Cathcart elaborated the crime referred to as gassing is a particularly reprehensible, vicious and nasty type of behavior that some inmates perpetrate upon the people who are working as correctional officers, primarily within the prison system.

Ms. Cathcart offered support for the provisions which require the testing of the inmate who did the gassing, and that the employee be given the appropriate assistance in testing to determine whether or not there had been exposure to a serious communicable disease. She stated with respect to the prosecutorial discretion, it was realized the statute as presently worded did provide the AG’s office with the ability to decide to prosecute or not. Ms. Cathcart said it was her opinion that Dave Sarnowski of the Criminal Justice Division has always prosecuted these cases when referred. There were many different reasons why one case may be dealt with differently than another, however.

Ms. Cathcart explained the state currently gave good-time credit to inmates and before the good-time credit can be taken away, the reason must go through due process. Ms. Cathcart said it was her understanding that when an inmate goes to the disciplinary committee, the disciplinary committee can recommend to the director the removal of accumulated good-time credit. So even if an inmate may technically be earning them while in lockdown for a period of time, the good-time credit can be taken away. That mechanism was provided for in the statutes and in the DOP procedures. There is a requirement to be careful not run afoul of the constitutional requirements for due process.

Chairman James stated the proposed amendment was to make it clear that while the inmate is under disciplinary action, the earning of good-time credit ceases for that period.

James F. Nadeau, Lobbyist, Nevada Sheriffs and Chiefs Association, Captain, Patrol Division, Legislative Liaison, Washoe County Sheriff’s Office, said he was in support of S.B. 149.

Captain Nadeau stated something of this nature impacts on a local level. Chapter 212 of NRS is a catchall that deals with a variety of correctional-institution and detention-facility issues. The chapter delineates not only a prison but also county and city facilities. He stated typically people look at a prison as being a state facility and not a local city or county detention facility. He noted that in discussions with Mr. Flagg and Mr. Tarantino, they are in agreement.

Stan R. Olsen, Lobbyist, Government Liaison, Intergovernmental Services, Las Vegas Metropolitan Police Department, stated in support of the bill he would like to echo Captain Nadeau’s comments, and was in support of Senator Care’s comments about contract employees. Mr. Olsen remarked in the Las Vegas Metropolitan Police Department (Metro), there were a number of contract employees coming into the prison facilities: The medical operation, librarian system, teachers, industrial program, and life skills program; these people also need to be covered in this bill.

Captain Nadeau interjected that Washoe County has the industries program and those employees were paid out of commissary funds, they were not employees of Washoe County. There were a variety of people working in various facilities that may potentially come in contact with the types of incidents being discussed, and it would be appropriate to cover these providers. Captain Nadeau added that fortunately gassing did not happen often in a county facility, but did happen and it was despicable.

Chairman James said he would like to address the proposed amendments since they are quite extensive. There being no further testimony on the bill, he closed the hearing and opened a work session on S.B. 149. The first proposed amendment, he stated, would be to expand the definition of an employee of a prison to others coming into the prison for contract work. Another proposed amendment would be to add county and local detention facilities by name, even though they might be technically covered under this chapter already.

Mr. Wilkinson interjected the reason they were not referred to was the term prison was already defined in chapter 208 of NRS for the purposes of Title 16 of NRS. The other provisions in this chapter only refer to prisons and prisoners. He stated usually that was a term used for state prisons. It also includes local facilities, so it was not necessary to include them specifically.

Chairman James said one pending amendment expands coverage to other people coming into the prisons. He suggested changing the language of page 2, line 9, "was involved" to "who was a victim." Then change line 15, page 2, from "an" to "or" to allow for correct referral to the attorney general "or" the district attorney, depending on who has jurisdiction. He stated there are additional suggestions, such as to add the Category A felony as the AG suggested for successful transmission of a communicable disease; and whether it should be defined the same way as was done with HIV (if it is a potentially deadly disease, then it becomes a stiffer penalty.)

Senator McGinness asked about the penalties in NRS 208.205, if it was originally for a prostitute who knew she had HIV and continued to work. Chairman James confirmed that was the exact circumstance, and was a Category B felony with 2-10 years penalty. But the crime was to willfully or knowingly engage in conduct that was intended or likely to transmit the disease. This statute does not say anything about actually transmitting, but rather it is a crime to engage in that activity. The AG suggested if you actually transmit to somebody, it would be a separate crime.

Senator Wiener commented there was a separate bill amending the year-and-a-day rule, but in a gassing incident someone has to wait 10 years to see if he or she has contracted AIDS.

Chairman James confirmed the observation. He added under S.B. 149, if an inmate involved in a gassing incident were diagnosed as having a potentially life-threatening disease, then that would be the crime. Chairman James asked Mr. Wilkinson to come up with the appropriate language.

Chairman James said the good-time credit issue was part of the originally requested BDR. It needed to be clarified that while inmates were under discipline for improper activities, the inmate should not be earning the good-time credit. He noted that Senator Wiener pointed out it is a reward for bad behavior. Chairman James stated the AG’s suggestion is to remove subsection 3 of section 1, page 2. He added, however, there did not appear to be any compelling testimony regarding the problems with this language under the DUI statute; there was only reference to it, which leaves the prosecutorial discretion. The language just ensures the crime will be charged, if indeed it occurs.

Senator McGinness said he believed the language should be left in and Senator Care concurred.

Senator Wiener stated for clarification that she had done life skills training at Jean for 2½ years as a volunteer. Although there was employer-contractor language, there were people who would come in contact with prisoners in some way who were not paid employees, who may be missed by the language of employer/contractor.

Mr. Graham responded that he too has volunteered at the prison and knew of others who did also. He stated he does not know how expansive to make the amendment, but visitors or volunteers were not covered under what now exists.

Senator Care observed it could include the instance of a prisoner gassing another prisoner. This legislation appears to have not contemplated that. He stated he did not know how often a prisoner gassed another prisoner.

Mr. Tarantino articulated there would be some difficulty if the words correctional officer were taken out of the statute. To substitute that for just "people," would go back to the overriding concerns about the ability of the Department of Prisons (DOP) to interpret the statute and to interpret the code. It needs to be expressly stated that the statute includes correctional officers. Mr. Tarantino stated the corrections association would be opposed to elimination of the words "correctional officer" or "correctional staff."

Chairman James noted the phrase used now was "employee of a prison," but the suggested amendment was "employee of a prison or any other persons."

Mr. Tarantino said to address the concerns expressed, the corrections association would be comfortable with "employee of a prison or any other person."

Chairman James suggested that subsection 3 say, "… the prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 involving the employee of a prison."

Mr. Wilkinson inquired if inmates were going to be included, since the bill would include "any other person." Chairman James responded, yes. Chairman James added just because someone was in prison did not mean the inmate consented to this kind of crime.

Senator Porter observed it seemed to him there would come a day when a person would have to wear suits, goggles and gloves every time when on site. From the testimony this morning the acceleration of this type of crime was not just here, it was nationwide.

Chairman James inquired what the penalties were for a Category A felony of a similar nature to infecting someone with a disease. Mr. Wilkinson responded penalties are anywhere from life imprisonment with possibility of parole or without possibility of parole; if with parole it could be a specific number of years before eligibility begins, or it could be a specific term of years, 25 or 50 years.

Chairman James asked Mr. Wilkinson to review the statute and consider life with or without, maybe a 10-year minimum, and make sure the proposed penalty tracks other crimes of similar seriousness.

Senator Wiener wondered if the language should specify whether that would be additional time and not served at the same time. Chairman James observed the discretion to run sentences consecutively or concurrently is with the judge under the sentencing law. He asked Mr. Wilkinson to review a possible provision to specify for this crime.

Senator Porter asked if these harsher penalties were going to make a difference because he agrees they are needed. He wondered aloud if this would have any effect on stopping the inmate that was there for life.

Mr. Flagg stated that most of the inmates that do gassing are the ones that are there for 10 or 15 years, not the lifers. He said he would rather be working with a yard of lifers than the 5-, 10-, or 15-year inmates. The guys in there for life, that is their home. He pointed out the particular inmate who gassed Officer Avilla was an exception to the rule. This legislation will make a difference because once the inmates find out about it and get prosecuted for it, just about everyone else will be deterred.

Chairman James suggested that the bill should have an effective date of upon passage and approval. He asked about concurrent versus consecutive sentences. Mr. Wilkinson responded it would be possible to put that into the crime itself to provide that the sentence has to be served consecutively.

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There being no further testimony, Chairman James closed the work session on S.B. 149.

Senator Porter then requested a committee bill draft, stating a family in his district had a son killed by a driver under the influence of a controlled substance. The statute was different for DUI as opposed to controlled substance, and there has been a request to change that.

Chairman James said he would add the proposal to the list of possible BDRs to bring before the committee, for consideration prior to the February 22 deadline.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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