The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:44 a.m., on Friday, February 26, 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

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman James opened the meeting with the introduction of two bill draft requests (BDRs).

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Chairman James opened the hearing on Senate Bill (S.B.) 234.

Matthew Dushoff, Deputy Attorney General, Workers’ Compensation Fraud Units, Office of the Attorney General (AG), spoke in favor of S.B. 234 saying he had helped draft this bill through the Sexual Assault Task Force, now called the Nevada Coalition Against Sexual Violence. Mr. Dushoff continued by saying it was a two-part bill. He said under Nevada Revised Statutes (NRS) 176.275 a judgment of conviction in a criminal case was enforced in the same manner as a lien. The bill proposes to enforce a conviction in a criminal case in the same manner as a civil judgment. The victim could then enforce by filing under criminal restitution, the same as a civil judgment. He pointed out the bill takes out many steps which makes it easier on the victim to collect the restitution if the restitution was, in fact, enforced in a criminal case. The other part of the bill was about making conspiracy to commit sexual assault an offense, so sexual offenders have to register. He averred that right now conspiracy is not part of a registered sexual offense. He noted that sometimes a conspiracy to commit sexual assault is a negotiated plea. He suggested what is happening is someone charged with sexual assault would plead guilty to a lesser sentence of conspiracy to commit, and would not have to register, yet they were sexual offenders. The task force would like to remove that loophole by making conspiracy to commit sexual assault an offense, and offenders need to register.

Senator McGinness wanted to know if the language was not a plea bargain, what conspiracy to commit sexual assault would be.

Mr. Dushoff responded that it would be like any other type of conspiracy. One person could not have a conspiracy with him or herself alone, so a conspiracy would be two or more people planning to commit sexual assault on another person. He said the task force told him the conspiracy plea was being used solely for the purpose of negotiation. Though there may have been charges of a more violent sexual assault, the suspect pleads to conspiracy because it is not a registerable offense, and carries a lesser jail sentence.

Senator McGinness stated he did not have a problem with somebody registering who actually committed something more serious, but then plead to this conspiracy charge. He wondered if somebody were actually charged with conspiracy, if making him or her register was the correct thing to do.

Mr. Dushoff stressed there was very little difference between conspiring to commit a sexual assault and committing a sexual assault. He believed conspiring to commit sexual assault in and of itself, or being charged with, found guilty of, or pleading to conspiracy, should be a finable offense, a registrable offense. The people and the officers need to know this person is, can be, and may be in the future, a sexual offender. He said whether a person was conspiring to commit a sexual offense or had committed a sexual offense and plead down to conspiracy to commit, in both cases that person needs to register as a sexual offender.

Senator McGinness wondered what would happen if two persons conspired to commit sexual assault on another person, and partway through the second person changes his mind, while the other person continues with the sexual assault. The second person could be guilty of conspiracy, but because the second person backed out before anything happened, should that person have to register. Senator McGinness concluded that this was getting into a very gray area.

Mr. Dushoff acknowledged Senator McGinness’ concerns. Mr. Dushoff stated it would be up to the district attorney’s office, who prosecutes these cases, that if a person backs out, whether they are going to charge that person with conspiracy to commit sexual assault in the case. Whether that comes up, or they plead guilty or they are guilty of a conspiracy, if the person backs out, they may still be considered for conspiracy. He pointed out it would be similar to a person driving the getaway car in a robbery, but decides to drive off because he does not want to be involved anymore; that person is just as guilty as the person who committed the robbery. Mr. Dushoff insisted if a person was going to start, plan, and be part of a crime, then in the middle decided to back away, there really is not much of a difference.

Mr. Dushoff continued it was a gray area, and could go from case to case on that matter; and depending on how much the person was involved in the crime would depend on what they would be charged with, and possibly plead to at the time. If the person was so involved to be charged with conspiracy, or charged with sexual assault, then that person should be registering as a sexual offender.

Senator Care said assuming this legislation passes, would it be normal practice for a defendant to be informed by the court at the time he enters into the plea agreement, that he is going to have to register as a criminal.

Mr. Dushoff answered the normal practice was the person and the attorney would know under the statutes the need to register. The person would be informed he would have to register as a sexual offender just as in any other sexual assault case.

Senator Care asked if this conspiracy offense was available for a single defendant who wishes to enter into a plea; he committed the offense, there was no conspiracy, but he took the plea. Mr. Dushoff clarified that he did not prosecute sexual offenses, he is a representative of the AG’s office on the Sexual Assault Task Force but does workers’ compensation prosecution, where in his experience there was pleading down to a conspiracy to commit. He said it was what is called a fictitious plea. A defendant pleads not guilty of a conspiracy, but pleads out for the lesser sentence in a case. Mr. Dushoff said one person can be found guilty of conspiracy, and that is called a fictitious plea.

Senator Wiener said she was pondering the scope of conspiracy. She wondered, for example, if two people talk on the phone chatting about a fantasy sexual assault, one encourages the other by goading that person on; that could be interpreted as a conspiracy. Mr. Dushoff commented it would be a fact issue as to whether or not the district attorney would prosecute that case as a conspiracy to commit. That was not really the intent of this bill. What this addresses is a person found guilty of a conspiracy to commit. What happens is people are pleading down to conspiracy to commit although they did commit sexual assault, so they did not have to register as sexual offenders.

Chairman James stated he understood about using conspiracy to commit as a plea. He indicated the committee members were concerned about the kind of crime. He said under the bill whether there was a plea to the crime or a finding of guilt, it means someone should be registered as a sex offender. He said his practice was not in criminal law, but his understanding of a conspiracy was a specific intent to commit the crime, as opposed to a general intent. First of all conspiracy to commit is a specific intent, and secondly acting on the conspiracy takes a substantial step. He observed a person would actually have to plan the crime. That was what makes a conspiracy. In most cases conspiracy was usually punishable by the same penalty as the crime itself.

Mr. Dushoff responded that Chairman James was right as far as conspiracy, and the phone conversation scenario may not be what would be charged. Mr. Dushoff stated what constitutes conspiracy to commit would be a case-by-case determination based on the steps taken, how far the person did go in the conspiracy to commit. That was what the district attorney would charge that person with; whether that person was going to plead to the charge or not, it would be a specific-fact call.

Chairman James asked Ms. Combs to provide additional information regarding conspiracy.

Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, said NRS 199.490 states an overt act is not necessary for conspiracy. What is defined in NRS 199.480, is two or more persons conspiring to commit sexual assault, is a Category B felony, with a 1-6 year penalty.

Senator Washington said this testimony reminded him of the people who were on the Internet; two young men who conspired to meet with a young lady and actually committed the act. Now that was a conspiracy, where one committed the act and the other one goaded or encouraged the person to do so.

Senator Washington continued what was just described was an agreement between two or more people to commit sexual assault. He wondered if they conversed on the Internet and came up with this grand scheme and never pulled it off, but were intercepted by law enforcement and the act was not committed, if that could be considered a conspiracy.

Mr. Dushoff responded he might not have explained well enough what makes up conspiracy to commit sexual assault. He clarified that the bottom line is, if the suspect is convicted of conspiracy, then there is an agreement between two or more people to commit some type of sexual assault, which is a registered offense. If the suspect pleads down to conspiracy to commit, then that should also be a registered offense.

Senator Washington called attention to the need for better understanding of the elements of conspiracy to commit sexual assault.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association, said two or more guilty minds gathering together to conspire to commit a specific offense, is a conspiracy. The only way to prove conspiracy is to have a third party present who may be an undercover person or other witness. The undercover person would testify as to what the guilty minds agreed to do. Some states require an overt act towards carrying out the conspiracy. A conspiracy is frequently plead along with the completed crime. He said a conspiracy plea was possible as a single event, but he hardly ever saw such a situation. A conviction for a conspiracy without witnesses is impossible, so frequently a crime would be plead down from the ultimate crime to a conspiracy.

Mr. Graham pointed out if there was a third party, an undercover officer as an independent witness, then a person could be charged with conspiracy to commit. A person cannot conspire with an undercover officer, because the conspiracy requires two or more guilty minds.

Senator Wiener commented that what she understood was by circumstance defendants plead down to conspiracy as the lesser crime. The bill proposes to make conspiracy equal to the actual crime in terms of registration of the sex offender.

Senator Wiener said she would like to go on record that the committee’s consideration does not mean anyone here is for sex offenders; she would like to have equity and a balance. Now the committee is considering an equal penalty in the bill for something Mr. Graham just said might not be fully evidenced, so defendants plead down to a conspiracy. She said she was having trouble with that.

Mr. Graham clarified that was partially what he said. Conspiracy is frequently used as a plea-bargaining tool. Generally, there is no question the event occurred. There may be evidentiary problems, witness problems, and reasons not to put the case on for trial. The prosecutor can often get just as much out of a conspiracy plea as out of the ultimate conviction.

Senator Wiener restated in the scenario given there was no question the crime was committed and this person was the perpetrator. She asserted because there are no appropriate witnesses, but the crime happened, the crime is plead down to the conspiracy. This bill proposes to make conspiracy somewhat the equal punishment because the person did commit the act. Senator Wiener called attention to the definition of conspiracy, which includes two or more guilty minds. She was concerned about the expansion. She stressed her concern about the person considered a co-conspirator who would be given the same penalty, and to what extent it may be carried out based on interpretation of this bill.

Mr. Graham asserted that frequently a conspiracy is a fictitious plea. There is no other party involved. If you are talking about somebody registering for conspiring to commit sexual offenses, he did not see it as a burden being placed upon a person who was guilty of a sexual assault or an attempt.

Chairman James requested Mr. Graham to address how plea bargaining in these cases works in Clark County. He also inquired about how many people get charged with sex offenses in Clark County per year. Mr. Graham responded there are a couple of hundred cases a year in Las Vegas, and 98.6 percent of the cases are negotiated. A person who plea bargains to a conspiracy would get notification, would get a felony conviction, and would possibly get probation if the sexual assault was a first-time offense. Generally a first-time offense would warrant reduction down to a conspiracy. Those are the reasons an offender could negotiate down to a conspiracy.

Chairman James noted there was a letter from Community Action Against Rape, by Renata Cirri to be placed in the record (Exhibit C); and a letter of support from Attorney General Frankie Sue Del Papa (Exhibit D). Both letters are part of the record in favor of the bill.

Chairman James closed the hearing on S.B. 234, and opened the work session on S.B. 121.

Chairman James referred to the work session document (Exhibit E). He said one question from the previous work session was whether most of this bill would apply to Washoe County, and it would. Chairman James asked Senator Porter to explain the water rights issue.

Senator Porter elucidated there are ongoing problems with well owners in the Las Vegas Valley. People who purchase homes are not sure of their water rights; whether they have a revocable or irrevocable right. He asked Julie Wilcox Slay to talk to the committee about how language could be added to the bill to address the issue of water rights.

Julie A. Wilcox Slay, Lobbyist, Southern Nevada Water Authority (SNWA), said on the front page of S.B. 121 there is a paragraph (a) and (b). The committee could add a paragraph (c), if needed, that would talk about wells and water rights. This paragraph would define the type of well, the condition of the permit, and/or discussion or description of the associated cost of wells and the connections. She pointed out what SNWA heard from the citizens’ advisory committee, through a series of workshops, was many people who purchased property were told they have a well, and they never have to pay a dime. She stated in reality there are power costs, problems with the wells, and different procedures and requirements to hook on to the municipal line coming up the road. The well owners do not have any idea of the cost; they do not know how to go about getting a well or if they have a permit. SNWA has found a lot of quasi-municipal wells or community wells; wells that serve more than one home. Some have permanent water rights and some have revocable water rights. The well owners are not aware they have any kind of permit on their water.

Chairman James added that in 1955, the Legislature passed a statute allowing the state engineer to grant revocable water rights. Before that time the permits were always irrevocable, once the rights were proved they were permanent. Since 1955, mostly in Clark County, all the water rights the state engineers have granted have been revocable permits. Revocable means if municipal supply comes within a certain distance, the well owner could be required to plug the well and hook on. He continued the well owner has to be told it is a revocable well, and the state engineer could require the property owner to hook up to the Las Vegas Valley Water District (LVVWD); or if it is an irrevocable well and the property owner will have it forever as long as it is in good standing.

Chairman James noted the committee would be voting on the bill today. He asked Ms. Wilcox Slay to assist, to the extent needed, to develop the specific language for the amendment to the bill.

Senator Washington wanted to know if there have been other grants for irrevocable water rights since 1955.

Chairman James said the 1995 legislation allows the state engineer in certain designated basins to grant revocable permits. The legislation was aimed at Clark County, and that is where most of the permits were granted. At that time the idea was the state engineer would continue granting artesian permits, but when the Colorado River project was completed, the river water would replace the wells. That was the idea behind the legislative action.

Senator Porter interjected as the wells sheer or need to be redrilled, there is substantial cost in capping; $4,000 or $5,000 for the old well plus the cost of running the water lines. In some cases it could be expensive. He said, over the years, only a few people have had to tie into the system. Others are now concerned it might happen to them soon, so this committee wants to make sure the new buyer is aware of exactly what could happen. He said the bill would not contain cost estimates, but the well owners need to know the requirements are such that they may have to hook up to a municipal supply.

Chairman James acknowledged the requirements are a good disclosure.

Senator Washington wanted to know if the homeowner incurs the cost.

Senator Porter responded the LVVWD crews and residents with the ground water recharge committee have been working on low interest loans to make it cost-effective for the homeowners. He said if a well is redrilled or a new well drilled, it could be $12,000-$13,000. The problem is the hookup fees to the water system could be $20,000. The Legislature is endeavoring to get those fees more in line so it is an incentive to tie into the municipal water line.

Chairman James commented to Ms. Wilcox Slay the added information for the bill should also deal with the issue of a domestic well, which is a third kind of well. He pointed out there is an irrevocable right, a revocable right, and there is a domestic well that is a non-permitted well, in which case, the information should indicate it is a domestic well. He said the state engineer cannot require the well owner to plug a domestic well and hook on to the system if it costs more than $200. That is what the statute says but when the well fails, the state engineer can prevent the well owner from drilling any deeper. Chairman James averred the state water engineer can de facto require the well owner to plug a domestic well, so that language should also be in the bill.

Ms. Wilcox Slay acknowledged the point, saying there is a big misunderstanding when people look at the current statutes. Chairman James interjected that according to statute, people may conclude domestic well owners do not need a permit if it only uses 1,800 gallons a day. They do not realize the state engineer can de facto require the well to be plugged because the water table is going down all the time in some areas due to the tapping, especially if there is a depression created where the well is located.

Ms. Wilcox Slay commented with LVVWD’s artificial recharge program they have about 160,000 acre-feet of water in its bank right now. The water levels have stabilized in the northwest area of Las Vegas Valley. She conveyed another program the citizens’ committee proposed was permanent recharge. That is 5,000 acre-feet of water that would be permanently recharged into the basin; 2,000 into areas of particularly sensitive ground water decline in the northwest area of Las Vegas Valley.

Ms. Wilcox Slay said the connections are paid by the homeowner and are the same connections any new homeowner pays if they are hooking up to a system. If it is a stick-built home in a municipal service area, the developer pays for the cost up front, adding it to the cost of the home, and the homeowner gets to mortgage it over 15, 20 or 30 years. She emphasized the citizens’ committee wanted a free ride, but the legislative committee wants equity and LVVWD wants that also. By using LVVWD’s ability to leverage off their bond program, the homeowner can spread the cost out over 20 years through a 5-percent loan program.

Senator Washington inquired as to how LVVWD is recharging its banks. He wanted to know from where they were getting the water. Ms. Wilcox Slay said between October and May groundwater is pumped out of the Las Vegas basin. The LVVWD wells are used only to meet peek demand in the summertime, due to the extensive heat in Las Vegas. In the other months the pumps are reversed, and there are some wells that are only for artificial recharge. LVVWD takes excess Colorado River water that has gone through the treatment process and injects it into the ground.

Mr. Wilkinson noted Ms. Wilcox Slay mentioned adding a new paragraph (c) on page 1. He pointed out that subsection 1 refers only to Clark County. He wanted to clarify whether this new disclosure would apply to the entire state or just to Clark County.

Chairman James acknowledged that was a good point, and said the language should apply to the whole state.

Chairman James accepted comments on the motion.

Senator McGinness wanted to know if the bill applied to the whole state. Chairman James responded that it would now apply to the whole state, except for subsection 1 of section 1, which still applies only to Clark County, and was added from Senate Bill 208 of the Sixty-ninth Session.

Senator Care noted it was mentioned that the 500-foot radius was being removed. He also noted that 500 feet was a standard when it came to certain notice provisions when there are hearings on rezoning. He wondered why the 500 feet provision was being removed and what would be left.

Senator Porter responded it was being removed because apparently LVVWD is already making information known to well owners through mailings. This change in the bill was to add within 500 feet the new charts and graphs. He stated by adding the language to the map to specify the general zoning terminology it would adequately address that particular issue. The changes to lines 41 through 43 on page 2, and the 500 feet will remain just in chapter 278 of NRS. Chairman James commented this bill was not changing the zoning statutes.

Senator Washington inquired of Mr. Wilkinson whether the new language regarding the new water rights would go in subsection 1 or in subsection 2. He also asked if Senator Porter’s proposed amendment dealing with water rights would go in subsection 1 or subsection 2. Mr. Wilkinson responded the amendment would go in subsection 4 of section 4.

Senator McGinness inquired if the Legislative Counsel Bureau (LCB) would be adding a designation letter to the subsection. Chairman James stated it would be part of the disclosures to the initial purchaser; Mr. Wilkinson will probably have to break that paragraph into sub-subsections.

Chairman James called for the vote.

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Chairman James thanked the subcommittee for their work on the bill. He requested Senator Porter handle the bill on the floor.

Chairman James introduced S.B. 146.

Chairman James stated this bill was introduced by Senator Titus. There was support for this bill during the hearing. Only one person spoke against, and there were no amendments proposed.

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Chairman James noted the bill was from the sentencing commission. In response to an earlier question about a fiscal note, the Department of Administration indicated there was none.

Senator McGinness said his notes indicate that all the impact would be on local governments, and that is what the fiscal notes says, "… therefore, local governments will incur all appurtenant costs of enforcement, prosecution and incarceration."

Senator McGinness inquired as to whether the committee had heard from the Fiscal Analysis Division. Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, said that the fiscal division indicated the fiscal note request only went to Bob Bayer, Director, Department of Prisons. Chairman James indicated the committee would hold the bill and get a specific fiscal request to the local governments. Senator McGinness agreed with the decision.

Senator Titus asked what the reason was for clarifying the jail time. Chairman James elucidated the addition was for the person with prior convictions and multiple offenses, who appeared before the court again on a Category E felony, which is mandatory probation; or the offender plead to a Category E felony, which is a mandatory probation. The judge is forced into a situation of having to put this three-time felony offender on probation. Last session (1997) a bill dealt with that, and that bill said, "… if that person has multiple prior offenses, then they could be incarcerated."

Chairman James continued, sayng that the sentencing commission did not think that language was enough. Judges wanted something specific so if a defendant did not meet the exact requirements of the number of prior offenses, the judge could still give jail-time. Judge Gamble (District Judge David R. Gamble, Ninth Judicial District, Department 1) really wanted this bill so judges could do a 30-, 60-, or 90-day shock incarceration; and then the inmate would go on probation.

Senator McGinness added some of the rural judges he represents were really upset they had to give mandatory probation. He stated he agrees with the bill, and also agrees that another look at fiscal impact is important.

Chairman James closed the hearing on S.B. 148 and opened the hearing on Assembly Bill (A.B.) 55.

Chairman James said this bill was Assemblyman Collins’ (Tom Collins, Clark County Assembly District No. 1) bill regarding the stolen burnt wire. The amendment was a compromise supported by Assemblyman Collins and Warren Hardy, II, Lobbyist, Smith/Christensen Inc. This bill would allow the buyer to rely just on the signed statement and the affidavit. That statement would relieve buyers of scrap metal of liability, and make it easier on the person purchasing the burnt wire.

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Hearing no further comments, Chairman James adjourned the meeting at 9:40 a.m.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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