The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:38 a.m., on Thursday, March 4, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. This meeting was videoconferenced to the Grant Sawyer State Office Building, 555 East Washington Avenue, Room 4401, Las Vegas, 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:

Assemblywoman Barbara K. Cegavske, Clark County Assembly District No. 5

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman James said District Judge Mark W. Gibbons and District Judge Gene T. Porter, Eighth Judicial District, made the request for this bill.

Chairman James noted the requested bill was by Senator Dean A. Rhoads, Northern Nevada Senatorial District, which addresses a specific municipal judge in his district who has a unique situation dealing with his term. This was requested on the Senate Floor on the last day to request bills.

Chairman James stated the request was from Senator William J. Raggio, Washoe County Senatorial District No. 3. He explained this bill would normally be heard in Senator Porter’s Senate Committee on Legislative Affairs and Operations, but Senate Majority Leader Raggio requested that this committee hear it first to formulate a recommendation. He said if this committee decides to pass the bill, it will be re-referred to the Senate Committee on Legislative Affairs and Operations to consider whether there should be an interim study.

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Ed Flagg, Lobbyist, President, Nevada Corrections Association (NCA), said he represents the Department of Prisons (DOP) employees. He noted the omission of psychological testing in the bill has been amended. Mr. Flagg continued the DOP employs almost 1,300 uniformed staff, and at no time are the employees tested for psychological job-specific capabilities. He said Jerry Nims, Ph.D., a psychiatrist and attorney who does the psychological profiling for the Nevada Highway Patrol Division (NHP), Reno Police, Washoe County, Winnemucca, and Fallon, was the person contacted to determine the cost of the program. Mr. Flagg conveyed the total cost for 225 employees would be $25,875; the follow-up for 45 people would be $7,875, for a total of $33,750 for psychological testing. He noted that was the cost for one bad employee including training, sick leave, annual leave, and to cover that employee’s position while he or she is in training at the academy. He emphasized the $33,750 was a minute cost for testing when the DOP can have 225 qualified employees for the same amount.

Walter R. Tarantino, Lobbyist, Attorney, Nevada Corrections Association, said the intent of the bill is to provide a vehicle for pre-employment testing of potential peace officers. He noted DOP employs the second largest number of peace officers in the State of Nevada, after the Las Vegas Metropolitan Police Department (Metro). The DOP may be the only law enforcement entity of any significant size that does not have polygraph testing and psychological testing for entry-level peace officers. He stated DOP has experienced recruitment and retention problems over the last several decades, and NCA’s intent is to foster a vehicle and/or environment that facilitates and helps the recruitment and retention. Mr. Tarantino emphasized the NCA views this testing as a win-win situation, and ultimately the up-front costs do not exist. By hiring individuals who are more psychologically suited to work in a correctional facility environment, DOP can recruit persons better suited, and hopefully not have as dramatic a turnover rate. He said the intent is to learn before people are hired whether they are suited for the correctional officer profession. Mr. Taratino emphasized not everyone is suited to be a peace officer or a correctional officer. This legislation is long overdue, and it will establish a protocol for hiring and recruitment, that is non-existing now.

Chairman James requested the elements of the polygraph examination be described. Mr. Tarantino responded it was a background check of applicants for any felonies, any type of arrest, and anything a potential employee may not feel comfortable putting on a job application.

Chairman James queried if it would be the same screening that Metro is doing. Mr. Tarantino clarified it would be the same screening that every major law enforcement jurisdiction in Nevada uses including the NHP. He said the Investigation Division (ID) currently provides the polygraph examination for highway patrol applicants at no cost. He emphasized the ID did not have the resources to do that for DOP; based on numbers alone, DOP hires ten times more employees that the NHP. Mr. Tarantino continued that there would be the polygraph examination, psychological examination, background examination, application procedure, interview procedure, and physical agility testing. The DOP does not have polygraph examinations or psychological testing for its peace-officer applicants.

Chairman James wanted to how many applicants fail the polygraph and psychological examinations in other law enforcement agencies. Mr. Flagg recited from a memo written by Dr. Nims to Mr. Tarantino:

Mr. Flagg summarized the intent was to upgrade the quality of DOP. He did not want someone working next to him or other officers who cannot do the job. That was where the psychological testing came in because there are people who are not capable of doing the job. He said DOP has spent money, time, and training on people who then decide not to continue or have to be let go. Mr. Flagg gave an example of an officer who made it through 5 months, started on the training program, and then had to be discharged because it became apparent he did not have the common sense and good judgement necessary for a peace officer. If this proposed testing had been in place at that time, this person would never have been hired and time, money, and effort would have been saved. Mr. Flagg emphasized the intent of this bill proposal was not to hurt labor or anybody else; it is to better the corrections department and make it safer.

Chairman James wondered why the proposed testing did not apply to wardens. Steve Barr, Lobbyist, Legislative Coordinator, Nevada Corrections Association, commented he understood that was not part of the original draft the NCA presented; however, he could understand the reasoning behind it. The warden’s position is an appointed position and serves at the discretion of the director.

Chairman James observed if the philosophy applies that an in-depth examination is needed for correctional officers, then the person who is ultimately in charge of the whole operation should also be tested. For example, at Alcatraz the warden was the cause of the problem. He opined that part in the bill excluding the warden should be removed. Chairman James pointed out there is no fiscal note with this bill. Mr. Barr replied that the Fiscal Analysis Division had sent a fiscal request to DOP, and as yet had not received the fiscal note.

Chairman James restated the amount testified to by Mr. Flagg for the psychological testing was approximately $33,000.

Mr. Flagg reiterated the total screening cost yielding about 200 officers a year is $33,750. He said Dr. Nims’ figures show the initial screening of 225 applicants at $115 each equals $25,875; and for follow-up screening of 45 applicants at $175 each equals $7,875, for a total of $33,750.

Chairman James stated the fiscal division will analyze those figures with DOP. He said the committee needs the fiscal note in order to act on Senate Bill (S.B.) 264; and if it is a budgeted item, it will need to go to the finance committee.

Senator Wiener said she wanted to know if there are any numbers on the turnover of personnel in 1- and 5-year periods. She also wanted to know if there are any statistics from other jurisdictions that use psychological evaluations to substantiate the lower rate of applicant turnover.

Mr. Flagg responded there is between a 15- and 25-percent turnover rate annually for DOP; as for other jurisdictions, he would have to do research.

Senator Care inquired if the basic reason for the polygraph was to check for criminal background and if there were other reasons as well. Mr. Flagg replied the polygraph was part of the whole process. It was the first part of testing the applicant for peace officer status. The next process was a background investigation which would include the psychological testing. The polygraph was to find out the honesty of the applicant, because the prison element has a lot of time to try to "con" correctional officers into bringing in dope, money, and other contraband. These tools are only a part of the whole hiring process.

Senator Care pointed out that polygraphs are not 100-percent reliable. The polygraph may indicate the possibility of a criminal background, but a background check may turn up nothing. Mr. Tarantino responded that was a "debate for the ages" about the reliability of polygraph tests. He said there are reasons why they are not admissible in court. In the State of Nevada they are not admissible in administrative proceedings. He stressed the main reason the polygraph was used in the screening process is it is better than no tool at all.

Senator Care asked Mr. Flagg to make up a want ad, in 25 words or less, outlining what was wanted in an applicant for correctional officer. Mr. Flagg responded the DOP is looking for professional people. Also people who have common sense and can walk into a prison institution knowing right from wrong. People who walk with pride and self-confidence; and people who have self-esteem and moral values. He said if a correctional officer does not have those attributes, the inmates will eat him/her alive. The inmates have a lot of time to figure out how to "get one over" on a correctional officer.

Senator Care commented that is what everybody wants with teachers, with bus drivers, and with accountants.

Mr. Barr articulated we all want those things. He said, however, a school is not putting teachers in towers with semi-automatic weapons. A bus company is not putting a driver out in the community with firearms. All these factors weigh into how stable is the individual. He said it is possible the individual has ulterior motives by applying for a position at a correctional institution, such as a predetermined plan to deal drugs or bring in a weapon for a prisoner willing to pay. Mr. Barr expressed there have been situations where officers have known inmates, and because of that are often compromised even before the applicants become employed. DOP has no way of determining potential situations from the present screening process. He said there have been officers with felony convictions and that fact did not show up on National Crime Investigation Center (NCIC) reports; they are not foolproof. The polygraph and psychological testings will give DOP one more way to ensure the quality of people needed for such a vital job. The quality of the people who are running the institutions and the officers make all the difference as to the security of the institution and of the public.

Senator Wiener wanted to know whether it was the polygraph or the psychological screening that would alert the interviewer to an applicant’s predisposition. Mr. Barr said that since he is not a psychologist, he could not effectively respond to Senator Wiener’s inquiry; however, there are a battery of standardized questions used by professionals to ferret out the information needed to make a determination.

Mr. Flagg interjected he would ask Dr. Jerry Nims to testify on the testing guidelines, or have the doctor send a statement to help clarify these questions.

Senator Wiener noted testimony from Dr. Nims would have to be relatively soon, since the committee will soon go into work sessions. She also requested that the other information requested be provided as soon as possible.

Mr. Barr emphasized that all the bills NCA has introduced this session including S.B. 264 are for the benefit of the public in training better officers. He said maybe most bills NCA should not be introducing, but that DOP should be introducing; however, NCA has a vested interest in secure institutions; "we are citizens too." When correctional officers are not on duty, they would like to feel safe. The career correctional officers want the profession to be upgraded.

Robert J. Gagnier, Lobbyist, Executive Director, State of Nevada Employees Association (SNEA), stated he was speaking against S.B. 264 as written; not the proposed amendment that was just discussed because that was not in front of him. He stressed if there was additional money available, it should be used for recruitment purposes to fill the over 200 vacant positions within the custody division of the Department of Prisons (DOP). There is a severe shortage, and a hiring freeze.

Mr. Gagnier stated that as an organization SNEA opposes use of the polygraph examination. He said the chairman pointed out a flaw in the bill, which excludes the director, assistant directors, and wardens. Mr. Gagnier clarified that wardens are not appointed positions but are classified for all purposes except removal. The wardens can be removed without cause, but they are appointed based upon the merit system. Should the bill pass, he said, SNEA would like to see that section removed or changed. He said SNEA would like to see the various aspects and components of the polygraph examination.

Mr. Gagnier stated there has been interference in the private lives of prison employees in the past, and he was sure that it could happen in the future. The peace officers’ bill of rights puts certain restrictions on the use of polygraphs for current employees. He iterated the budget for DOP included 1,450 custody positions of which only 1,300 are filled. He said, for example, it would not be unusual for Ely State Prison to hold a recruitment and have 35 applicants; but by the time of the interview process, there may be fewer than 8 and that is with a current vacancy of over 50 positions. He emphasized efforts needed to be directed in a different direction than what this bill purports.

Mr. Gagnier clarified his position as not talking about using the money to retain additional correctional officers; that money is already in the budget. He was referring to using the testing money for recruitment, and advertising the jobs. Chairman James opined that if polygraph and psychological testing is being given for other peace officer positions around Nevada, then a department with 1,300-1,500 employees should also be using this kind of screening.

Mr. Gagnier agreed there should be screening and background checks. He said what was found was whenever the department had difficulty in recruitment they toned down the level of background checks. He stated it was true DOP has hired convicted felons, because they did not do the background checks.

Chairman James interjected the bill would require DOP to do the background checks. Mr. Gagnier responded the department could do the polygraphs now. He noted the only thing this bill does that the current state law does not do is prohibit giving such tests to wardens and assistant directors.

Chairman James agreed with Mr. Gagnier in that there should be more guidance as to test content, and he stressed it would be helpful to have someone involved in the testing process give testimony before the committee.

Mr. Gagnier suggested if such language were to be included in the bill, that it be based on U.S. Supreme Court cases on narrowly applying to the job situation. He offered to have SNEA’s attorney supply examples of some of the court cases to which he was referring. Chairman James said that would be helpful. He concluded the committee would need more information provided by those who gave testimony so the committee can further review the legislation. Chairman James said he would like more information on the contents of the tests, the case law from the U.S. Supreme Court as to what is permissible under the law, and to address the provision that exempts a certain category of administrators.

There being no further testimony, Chairman James closed the hearing on S.B. 264, and opened the hearing on S.B. 265.

J. Charles Thompson, Lobbyist, Assistant District Attorney, Clark County, said he is in support of S.B. 265. He clarified the bill pertains to what is called windfall evidence derived from the lawful interception of wire or oral communications. He said windfall evidence is simply evidence of crimes other than for which the interception was authorized. At the present time Nevada law says windfall evidence may not be used against the person at a later trial if it is obtained during the interception of communications. He said, for example, a judge authorizes the interception of a drug trafficker’s communications to learn the source of the drugs. While law enforcement is listening, the drug trafficker says, "By the way did you hear about the drive-by last night? Well I was the one that shot the kid, and I threw the gun in the dumpster behind the 7-Eleven." Mr. Thompson said that was called windfall evidence. As Nevada law exists today that person’s statement could never be used against him in a subsequent trial. He said getting the gun from the dumpster is derivative evidence, and the gun could be identified as the one used in the killing, but the prosecutor could never use the statement.

Mr. Thompson told the committee he had one of his law clerks research the laws in Idaho, Kansas, Oklahoma, Oregon, Texas, Utah, California, Washington, Colorado, and Arizona regarding windfall evidence. He stressed not one of those states precludes the use of windfall evidence in its entirety. Some of the states only allow certain kinds of windfall evidence. For example, Colorado limits it to evidence of a felony. He said to the best of his knowledge no other state limits or precludes all windfall evidence, as does Nevada. The proposal in the bill would permit the use of windfall evidence if it was evidence of a crime for which an interception could be authorized under Nevada’s wiretap laws. Mr. Thompson said he talked about S.B. 265 with Las Vegas Defense Attorney Richard M. Wright, who is a member of the defense bar. Mr. Thompson averred that Mr. Wright indicated he had no problem with the change in the law permitting the use of windfall evidence, if it pertained to evidence of a crime for which an interception could be authorized under Nevada law; but he did not want it broadened to evidence authorized under the use of the federal laws. Mr. Thompson said he was asked to propose the removal of the reference on line 19, page 2, to Title 18, United States Code (U.S.C.) sections 2510 to 2520 inclusive. Mr. Thompson said he had not asked for that section to begin with and had no difficulty in requesting the removal of that section from the bill.

Senator Care said he did some research regarding windfall evidence in federal law, and found most of the cases sighted were federal cases and not state cases. He read from Title 18, U.S.C. section 2617, "Communications relating to offenses other than those specified in the order of authorization or approval." Senator Care said he understood that to mean it was for any cause, the investigator is not restricted. He referred to federal cases in wanting to know how far into a conversation may investigators listen in hopes of detecting an unrelated crime.

Mr. Thompson responded there are no set rules as to how long an officer can continue to listen to an unrelated conversation. He cited the case of Scott v. the United States where the court required and set forth some parameters for minimization. He stated that because of the invasiveness of intercepts the United States Supreme Court has required law enforcement officers who are listening to a person’s communication to record only conversations pertaining to the offense for which the authorization was made. He illustrated by saying if the officers are listening to evidence of a murder, that is all they should be listening to, and when the people start talking about other things the officers are required to minimize; that means turn off and not listen any further. He said if the suspects were talking about murder, they normally would confine themselves to the subject matter; they would not talk about the price of rodeo tickets or what they watched on TV.

Mr. Thompson referred to his example where a drug trafficker is talking to one of his suppliers about a load of drugs. They like to use codes, so it may take awhile to figure out whether they are still using code or really talking about something else. But when the person says, "By the way did you hear about the drive-by last night, well I was the one that shot the kid." It only takes a few seconds to have heard that conversation. No judge would require the officer to have minimized that particular statement. The officer would not know what the conversation was about, and they may still have been talking in code; so it is usually takes a few minutes to determine the direction of the conversation.

Mr. Thompson said there is a rule of thumb used by some in general interception cases, and that is 2 minutes or less is enough to know whether or not a conversation is about the particular subject for which the authorization was made. He said because records have to be kept, it is known how long the officer listened and what he heard. If the officer listened too long, then the judge could throw out the entire case. He stressed if there was a requirement that there be minimization, it has to be a reasonable period of time before the officer turns off the wiretap. If the conversation is about the subject for which the authorization was given, then the officer can continue to listen. He emphasized a lot depends on the nature of the operation. For example, if it was about drugs, the law knows from prior investigations the particular telephone averages 200-300 calls a day, and those calls are an average 20 seconds in length; this would be typical for someone who was dealing drugs. Mr. Thompson pointed out the officer listening would know within the first 20 seconds of the next call whether the call was about drugs. But if the call was about a murder it may take a little longer to determine the extent of that conversation.

Senator Care commented the minimization explanation supports the case law he had reviewed. He said the case law language brought to mind a scenario where an informant might tell an investigating officer, "I know we are investigating this guy for drugs but I think I can get him to talk about the murder he committed." So the informant uses a phone with a wiretap. He said that sounded like it would not be permissible, that would be subterfuge.

Mr. Thompson responded it would only be permissible if law enforcement had authority to listen for that particular offense, the murder. Otherwise the informant would be a police agent and that would not be windfall evidence; a judge would throw that out.

Senator Wiener said her inquiry had a different variation. She said that in the gang environment there is a mind-set that fosters a substantial prevalence of bragging rights. Often gang members talk more than they walk, and that was a status thing in a gang. She noted the more gang members brag about something, the more real it becomes in their minds. Senator Wiener expressed concern that the person could be suspect when he was only trying to gain status in the gang through bragging rights, when he was not actually part of the incident at all.

Mr. Thompson remarked that may be one of the reasons why Nevada law requires corroboration. He said a recent intercept of communications was made by the federal authorities of some individuals who claimed they had the ability to bribe a judge, which turned out not to be true; and it necessitated another investigation to find out the truth. This is an example of why law enforcement does a good job of finding out the validity of such things; they check for corroboration.

Chairman James posed a situation if it was a wire intercept aimed at "person A" about a certain crime, would the windfall evidence rule apply to something uttered by "person B" on the phone. Mr. Thompson replied that it would apply. He said if drug trafficker "A" is talking with somebody else, and the person with whom he is speaking is the person that says he was the one that committed the crime, that would be admissible under S.B. 265 against the person speaking. As the law is presently in Nevada that would not be admissible.

Chairman James continued there is no prior, there is no affidavit of an informant, there has been no reasonable ground, and nothing has been brought before the judge. Mr. Thompson interjected there could not be anything because law enforcement does not know about it yet.

Chairman James inquired about corroboration if there already is a killing. Mr. Thompson responded if the gang member bragged he was the one that did the killing, corroboration of that statement would not be needed; the person could be convicted on that statement. He elucidated corroboration is needed for the corpus; corroboration is not needed for the statement in and of itself. He said the same thing is true when someone who likes to confess to crimes comes to the police to say he did it. The police will get corroboration before prosecution.

Ben Graham, Lobbyist, Legislative Representative, Nevada District Attorneys’ Association, stressed that the committee should keep in mind intercepts are extremely restrictive. He said the information received in an intercept was carefully reviewed by a reviewing judge; and at any time evidence is requested to be admitted into court, there are extensive hearings on motions to suppress. There are many built-in safeguards before this evidence can come in. He emphasized law officers are trained to weed out false leads. The mischief of bragging rights would not be a significant burden upon the gang community, because the police hear this bragging on a daily basis.

Senator Care inquired about when it was necessary for an officer to seek an amended order, and would hearing windfall evidence require seeking an amended order. Mr. Thompson remarked he was not sure what the Senator meant by an amended order. He clarified usually an amended order was to correct something that was in error in the first order. He wondered if the Senator was talking about a new wiretap for a different offense, and if so, that would be a new wiretap.

Senator Care responded that did answer the question. He said it was discussed in the cases he looked up where evidence of another crime is heard, and in those cases they issue what was referred to as an amended order.

Mr. Thompson commented that an amended order may be predominately a federal procedure; that is, not a procedure that is regularly employed. He communicated that assume an officer is listening to a drug trafficker talking about drugs, and the suspect starts talking about kidnapping and extortion. These are offenses for which a different wiretap could be authorized. That is permissible under subsection 1 of section 1 where it says:

Mr. Thompson continued the officer would then make that disclosure to the judge and a new application for an interception of communications for the new offense of kidnapping and extortion could be issued.

Senator Titus reiterated Nevada was the only state that does not allow windfall evidence. Mr. Thompson clarified he said to the best of his knowledge, Nevada was the only state in the United States that entirely precludes the use of windfall evidence gleaned from court-authorized wiretaps. One reason for this is a book called "Carr," a two-volume set on intercepts that is used as a guide to the law regarding intercepts. In the section on windfall evidence, Nevada is footnoted as a state that is different. Mr. Thompson said this indicated to him that if there were other states they would have been mentioned; plus he had a law clerk research ten surrounding states, and none of those states preclude the use of windfall evidence as does Nevada.

Senator Titus noted the federal government also allows windfall evidence. Mr. Thompson replied that, in fact, his proposal was to use the federal guidelines.

Senator Titus commented the federal guidelines allow windfall evidence based on the person who is talking, and wondered if the courts allow it to include the person who was listening on the other end of the line. Mr. Thompson responded windfall evidence applies to anybody who is overheard on that wiretap, so long as the individuals who are doing the interception and minimization are doing so according to parameters given by the judge in the original order; it can be either party.

David S. Gibson, Lobbyist, Attorney, Legislative Representative, Clark County Public Defender, and Nevada Attorneys for Criminal Justice, stated Mr. Thompson was correct. The word he received from Mr. Wright was that if the U.S. Code reference was eliminated from the amendment, the defense bar would not have an objection. He said when he read the bill at first all his red flags went up, but in his 18 years of practice he had never seen any wiretap evidence. His understanding was wiretap evidence was rarely used and he had to search through the members of the defense bar to find someone who knew something about wiretap evidence, and that was Richard Wright. Mr. Gibson said he would defer to Mr. Wright’s testimony.

Senator Care stated it was a sensitive and serious subject, and this was the second bill that has come before the committee this session. He assured the presenters the bill would get proper deliberation.

William Parker, Concerned Citizen, testifying from Las Vegas, said he had no objection to S.B. 265 as written. He noted in looking at the wiretap statutes, Mr. Thompson and Mr. Graham are correct; wiretaps are rarely if ever authorized. Mr. Parker said it is his understanding wiretaps are used only in situations where evidence cannot be obtained by other means due to safety of informants, law enforcement, and others. He acknowledged Senator Wiener was correct about bragging rights, but anyone who is going to discuss these types of issues on an unsecured telephone or unsecured line risks revealing themselves in this particular area. Mr. Parker maintained the advent of technology is to the point where encrypted communications will eventually make wiretaps useless to law enforcement or other parties. He said currently there is the ability to set up a system so suspects could communicate securely and not have to worry about law enforcement listening in, because all they would hear was electronic garbage. He saw nothing in the bill that would be overly intrusive provided all the proper steps were taken through a court of law to obtain a legal wiretap.

Chairman James hearing no further testimony closed the hearing on S.B. 265, and opened the hearing on Assembly Bill (A.B.) 22.

John C. Morrow, Lobbyist, Chief Administrative Deputy, Washoe County Public Defender, said he had sent Chairman James a letter and would like a copy of the letter included in the record (Exhibit C). He said the bill is a simple provision, it is taken from a federal statute, the Prison Litigation Reform Act of 1995. In 1996 the federal government entered an initiative to limit the number of inmates’ civil-rights lawsuits. One of the provisions was to require inmates on any lawsuits in which they were victorious, to pay their monetary judgements towards their restitution. Nevada currently has a statute, Nevada Revised Statutes (NRS) 176.275, that makes a restitution of judgement, which is equivalent to a civil lien; there is no enforcement provision to collect this money. In A.B. 22 it would be a simple provision to collect money from inmates who are victorious in lawsuits to pay restitution.

Senator Care said section 1 applies to a lawsuit by an inmate against the state, county, department, commission, board, and so on. He pondered if in section 2, small claims was for the inmate who has filed a small claims action against anybody.

Mr. Morrow responded that was correct. Often inmates will file small-claims actions because some of them just want a trip downtown, and will file a small-claims action for $10 or $15, and the DOP will spend up to $100 to transport the inmate to and from court. This bill would require the inmate to pay for the transportation. He pointed out there are alternative means to have the inmate heard. In federal court there is a telephonic hearing, and there is videoconferencing available. So it is a simple provision to make inmates pay for their transportation for small-claims action, if they are able to do so; otherwise, the matter would be heard by phone or alternative means if the judge needs input from the person who filed the suit.

Senator Care inquired how an inmate would even file a small claim. Mr. Morrow responded filing can be handled by mail.

Mr. Parker continued that as a crime victim himself, he realized having worked with a number of victim-rights organizations, much of the court-ordered restitution never reaches the people who need it most; the people who have been victimized by criminals. This bill would amend those areas so the people who need the money actually get it. Mr. Parker said he has a restitution order that is still pending, and would have as much chance of that money coming to him as he would have in jumping to the moon. If an inmate is successful in obtaining litigation against the state and obtaining any monetary proceeds, then that money should be made available as quickly as possible to the individual or individuals who were injured by the perpetrator. He commented he knew of no other way to say it, but there never seems to be enough enforcement. He said that the people can pass all the laws they want, but unless there is some ability by the attorney general’s office or by other agencies to get the restitution into the hands of the victims, the existing laws do not cover what needs to be done; this is why A.B. 22 needs to be passed.

Assemblywoman Barbara K. Cegavske, Clark County Assembly District No. 5, thanked the committee for hearing the bill. She emphasized the one thing that was noticed was the word "city" was deleted, and that was in the amendment from the Assembly. It is meant to be county and city jails along with the state. She asked the committee to add "city" to the bill.

Chairman James wanted to know about the use of "indigent" in subsection 3, section 2, stating it seems it might swallow the provision. Mr. Morrow responded the court has an in forma pauperis application they would file along with the filing of the small-claims action; and that would be the determining factor as to whether someone was indigent and whether they could proceed with in forma pauperis.

Chairman James inquired whether in forma pauperis would include the inmate saying he/she was not presently occupied in gainful employment, and had no bank account. Mr. Morrow acknowledged it was exactly that. The inmate would have to swear under oath he/she does not have any money, and does not own a vehicle or anything of that nature.

Senator Titus wondered if in forma pauperis would be similar to the form used when trying to determine who can afford to pay for jail. Mr. Morrow speculated the in forma pauperis would be similar to someone who comes to court with a grievance against the state and would like it heard but has no money for court costs.

Chairman James speculated if the nature of the Assembly amendment was the addition of settlement provisions. Assemblywoman Cegavske stated that was correct.

There being no further testimony, Chairman James closed the hearing on A.B. 22 and opened the work session.

Chairman James commented A.B. 24 was a measure that would add a provision to allow courts to accept credit cards. He said, as he recalled, local government has to pay the fee for use of a credit card, but if it was a court, the court can make the person pay the fee. He noted the only issue was on line 3, page 1, "… enter into a contract with an issuer …"

Chairman James continued there was a question whether that was plural; they could have more than one contract with issuers. He pointed out on page 2, line 13, where the existing provision said, "… may enter into contracts with issuers …" Chairman James indicated the sections were not drafted the same, and inquired if the bill should be technically amended.

Brad Wilkinson, Committee Counsel, Legal Division, Legal Counsel Bureau, responded that is a decision for the committee. He said, as a purely technical matter, the singular would include the plural and that would be all right. He said the possibility may be raised because the two statutes are worded differently, and someone reading it, or a court interpreting it, might think a different meaning was intended.

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Chairman James introduced Assembly Concurrent Resolution (A.C.R.) 2.

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Chairman James said A.B. 22 needs to be amended to include the word "city."

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RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: