The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:40 a.m., on Friday, March 5, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

GUEST LEGISLATORS PRESENT:

Assemblywoman Dawn Gibbons, Washoe County Assembly District No. 25

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Chairman James introduced two bill draft requests (BDRs).

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Chairman James stated Senator Titus’ bill (Senate Bill (S.B.) 11) on the 1-year and 1-day rule has been amended by the Assembly, making the act effective on passage and approval and adding Assemblyman Perkins as a joint cosponsor. Chairman James asked for a motion to concur in the Assembly amendment.

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Leonard I. Gang, General Counsel, Commission on Judicial Discipline, stated A.B. 20 merely clarifies if the commission removes someone from a judicial office they are not eligible to be a candidate for another judicial office. He said when the commission was established in 1976 it was clear that the commission had jurisdiction over district court judges and supreme court judges. The statutes regarding eligibility for candidacy for those offices provided if the judges were removed from judicial office by the commission they could no longer seek another judicial office. In 1994 the Constitution of the State of Nevada was amended to clarify the commission had jurisdiction over justices of the peace and municipal court judges, but the statutes were not amended to provide that if they were removed they were ineligible to be a candidate for office.

Chairman James asked why there is additional language in A.B. 20 about justices of the supreme court not being eligible as candidates if they have appeal pending.

Mr. Gang replied that language was previously in the statutes but has just been moved providing the words "ever" and "any judicial office" to make it clear that if, for example, a justice of the peace had been removed from office by the commission that person is not eligible to run for the supreme court. He furthered the other language which was put in by an amendment clarifies a person is not ineligible to be a candidate if that person has been removed and the decision of the commission is pending appeal in front of the supreme court. Mr. Gang added the supreme court has already entered a ruling in regard to a judge who was removed by the commission and was a candidate for office. A mandamus was brought to the Nevada Supreme Court which clarified a judge was not ineligible to be a candidate because decision of the commission was pending appeal.

Senator Wiener asked if a person is pending appeal and running for office if that tolls the appeal if that person wins.

Mr. Gang replied if a person was removed by the commission and was a candidate for office while the appeal is pending that person is eligible to run during that period of time. If that person is elected to office and the supreme court then affirms the commission decision, the office would be declared vacant.

Senator Care asked why there seemed to be no trust of the voters.

Mr. Gang replied he thinks it would be somewhat strange if the commission was to remove a judge for ethical violations and then have the voters say they want that person to be a judge even though he is unethical. He said he is only aware of this situation occurring once in the United States where a judge was removed for misconduct, ran for office, was elected to office and then the Supreme Court of Louisiana held that judge could not serve in that office. Mr. Gang stated that although the voters are qualified to elect people who are competent or incompetent, it is a different situation with regard to ethical violations.

Chairman James asked if the title should have been amended in the Assembly because the title just refers to municipal court judges and justices of the peace, whereas the bill now deals with supreme court justices and district court judges. Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, said he would look into that.

Senator McGinness asked what the word "retire" means in this bill as it does not mean a judge voluntarily retired.

Mr. Gang replied the commission has the authority to remove a judge for acts of misconduct and also has the authority to cause a judge to retire which is different. Mr. Gang said if a judge was to become incompetent because of senility or something of that nature the discipline commission could cause that judge to be retired.

Senator McGinness asked if that would be like in employment allowing a person to resign or be fired. Mr. Gang replied yes, that would be the way it would occur. He said the discipline commission tries to retire a judge informally before proceeding to a formal hearing.

Chairman James pointed out there is a provision in this bill applying to forced retirement which prohibits that person from running for judicial office or being appointed. Mr. Gang confirmed that is correct.

Senator Wiener asked for an explanation of what ethic violations involve. Mr. Gang explained the discipline commission has jurisdiction to remove judges for violation of the canons of judicial ethics. The statutes also provide if a judge is convicted of a felony or other crime that the commission has jurisdiction to remove that judge. He furthered if a judge is indicted for a crime the judge is immediately suspended.

Senator Wiener asked if an indictment would lend itself to an ethical violation of the canons. Mr. Gang replied a judge who is indicted is immediately suspended by the discipline commission with pay. If convicted the judge is suspended without pay. Mr. Gang furthered even if the judge was to be acquitted the commission could still investigate the judge and remove the judge from office, not because of the criminal penalty but because of violations of the canons.

Senator Washington expressed concern with the language removal in section 1, subsection 1. Mr. Gang referred to the amendments in section 2 and section 3 wherein that language is incorporated back into the statute. He continued the difference was that the language which appeared in section 1 is in a section of the statute that deals with the commission and the other language is in a section of the statute that deals with eligibility for judicial candidacy. Mr. Gang continued the language was removed in section 1 and placed into each of the sections that deal with eligibility for candidacy.

Senator Care asked if A.B. 20 would apply to a judge removed from the bench in another state and then moves to Nevada and tries to run for office. Mr. Gang responded that is a new question and he does not know if this statute would be broad enough to cover a situation where a judge was removed by a judicial disciplinary commission in another state. Chairman James added this statute states "from any judicial office by the commission on judicial discipline."

Senator McGinness asked if there have been these types of cases recently, other than the recent Las Vegas case, which instigated this bill. Mr. Gang stated there have not been other cases in Nevada and when the North Las Vegas case occurred he contacted the American Judicature Society to find out if there was a precedent for this particular situation. He said he was informed there was none other than the Louisiana case that was going on at that time. He stated although these are the only two cases where this has come up, there are other states that have similar provisions.

Senator McGinness asked who requested this bill. Mr. Gang replied this bill was requested by the judicial discipline commission.

There being no further testimony, Chairman James closed the hearing on A.B. 20 and opened the hearing on A.B. 83.

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association, stated A.B. 83 was requested by Las Vegas Metropolitan Police Department (Metro) to add "debit cards" to Nevada Revised Statutes (NRS) chapter 205. He furthered he was testifying on behalf of Lieutenant Stan R. Olsen of Metro who was unable to attend this hearing. Captain Nadeau explained debit cards are used for getting money out of an account and have changed in many ways with what they call "smart cards" that look like a bankcard. He said Metro’s feeling is that debit cards are not covered under the current statute and need to be added because crimes involving theft of debit cards are becoming much more prevalent.

Chairman James asked if debit cards do not always require the use of a personal identification number. Captain Nadeau said it is his understanding that some of those cards do not always require a personal identification number and even in those cases where a personal identification number is required, oftentimes people include the numbers with the card because they cannot remember the numbers.

Senator Washington asked if the user can have the card discontinued once it is stolen. Captain Nadeau replied that they can if they are aware the card has been taken, but in some instances people are not aware the card has been taken until money has been withdrawn from their account without their knowledge.

Ben Graham, Lobbyist, Clark County District Attorney, said this is another situation where developing technology is being brought into existing legislation. He continued although this type of crime could currently be charged under comprehensive theft, debit-card theft is a specific area that should be included in the statute with credit-card theft.

Chairman James asked if the addition of the restitution remedy in section 8 is different or just needs to be added for the debit cards. Captain Nadeau replied that language was not addressed in previous testimony of which he is aware.

Chairman James asked, with regard to section 14 of A.B. 83, wherein the holder of a card pays the full amount due plus any handling charges, why it provides 5 days after payment is refused on debit cards and 10 days after payment is refused on credit cards. Captain Nadeau said he believed the reason is because debit-card withdrawals are immediately debited from a person’s account. Chairman James furthered this is for a crime of using a credit card and the prosecutor has to show that the person had the intent to defraud. He added this bill will cut the time in half for intention to defraud if a debit card is involved. Chairman James expressed his concern is whether the average person would know the difference between a debit card and a credit card and that they have half the time to make good on a debit card than on a credit card.

Mr. Graham stated from a practical standpoint in prosecutions of economic events, law enforcement does everything it can to keep from prosecuting. Before prosecution, everything is looked at to show a pattern of these types of offenses because obviously anybody can make a mistake. He furthered the pattern and history is required before these cases are approved.

Chairman James asked who came up with the 5-day issue for debit-card offenses. Mr. Graham replied he was not certain from where that came. He furthered Lieutenant Olsen had testified on this bill at the Assembly hearing and the 5-day issue was not addressed at the Assembly hearing. Chairman James suggested finding out if the 5-day issue is appropriate. Mr. Graham stated he would find out where the 5-day issue came from and whether it is important.

There being no further testimony, Chairman James closed the hearing on A.B. 83 and opened the hearing on A.B. 159.

Assemblywoman Dawn Gibbons, Washoe County Assembly District No. 25, presented A.B. 159 stating this bill was heard in the Assembly Committee on Judiciary on February 24 and was passed unanimously. She continued that on February 26 the full Assembly heard the measure and it was passed unanimously and referred to the Senate Committee on Judiciary. She said currently NRS 688A.420 prohibits a person convicted of murder from collecting beneficiary proceeds of the murdered decedent’s life insurance. Mrs. Gibbons furthered A.B. 159 proposes to amend the law by further disallowing a beneficiary from collecting life insurance benefits of the deceased if the beneficiary committed voluntary manslaughter or conspired to commit the murder. She stressed if A.B. 159 is enacted Nevada would not be the only state mandating a forfeiture of life insurance benefits from crimes other than murder by the person responsible for the death. Mrs. Gibbons provided the Senate Committee on Judiciary with a few examples of statutes from California, Oregon, Idaho and Colorado (Exhibit C).

Matthew Williams, Director of Claims and Underwriting, Western Insurance Specialties, stated it has been his experience in drafting this bill and talking with various senators and assemblymen that many think this would be common sense and also think this has already been covered by NRS. Mr. Williams furthered it is still possible for those directly responsible for a person’s death to collect the decedent’s life insurance proceeds. He said he has personally been involved with two situations where he has seen life insurance proceeds paid directly to convicted felons. If this bill had already been enacted these proceeds would have been distributed to either the surviving families or the estates of the deceased keeping it out of the hands of the killers. Mr. Williams stressed A.B. 159 will shut down the opportunity for convicted killers to collect life insurance proceeds from the people who have died at their hands. He pointed out the insurance companies will not benefit monetarily in any way if this bill is passed. The only gratification of the insurance companies will be in sending the benefit checks to other family members and not the convicted felons.

Senator Care said he had no problem with the intent of the bill but wanted to know more about the conspiracy theory. He asked what if a husband is convicted of conspiring to kill his wife, does not go through with it and 20 years later his wife dies of natural causes. Senator Care’s understanding was that the husband could not collect the proceeds even though there was no murder and the death occurred 20 years later.

Mr. Williams replied he thought Senator Care’s understanding was correct in the way the bill is now written, but this bill is trying to prevent anyone who conspires to kill or kills from benefiting monetarily.

Senator Care observed the current statute provides if someone named in a will is responsible for that person’s death they cannot collect, but if somebody commits voluntary manslaughter they cannot collect the proceeds under A.B. 159 but still could collect everything they are entitled to under the will. Mr. Williams said he believed Senator Care’s observation was correct. Mr. Williams added this bill is just for life insurance policies that have beneficiary designations.

Chairman James suggested if A.B. 159 is going to amend the statutes to add voluntary manslaughter and conspiracy to commit murder, maybe those same things should be added to the other related statutes. He asked if anyone present had analyzed whether the existing related statutes should be amended to coincide with this one.

Anne Peirce, Vice President, Western Insurance Specialties, replied that she did not know if during the bill drafting the will or intestate language was cross-referenced.

Senator Washington asked if there was a statute of limitation on conspiracy. Chairman James added that a Nevada statute was adopted in the 1993 or 1995 Legislative Session which raises a certain defense to domestic battery, and he questioned if it would be desirable to apply this situation to A.B. 159.

Mrs. Gibbons said she did not know if that type of situation would stand for murder. Chairman James said the manslaughter question raises the issue of the domestic battery situation.

Mr. Williams said he was unclear as to whether this bill would apply to that type of situation. He continued the way the bill was originally written the person it was meant to apply to was the individual who goes in on a murder or conspiracy charge and pleads down to voluntary manslaughter even though that person was responsible for the murder. Mr. Williams said the insurance industry is trying to plug up the hole of letting a person plead down and collect the life insurance proceeds.

Chairman James said that could not be done because plea bargaining is a discretionary decision with the prosecutor. He furthered all the consequences that flow from pleading someone down to a lesser crime are things that are determined by the judicial system.

Senator Washington interjected under Senator Care’s scenario there is a statute of limitation of 3 years on conspiracy to commit murder. Senator Care observed there is a case in Nevada that determines the statute means exactly what it says, that it requires a conviction of murder. He said he looked at the language of the California statute provided by Mrs. Gibbons and the language in California does not say "convicted of murder," it simply says "feloniously and intentionally" kill someone. He wondered aloud if Nevada should have a statute which provides anybody who feloniously and intentionally kills somebody cannot collect life insurance proceeds. He added if somebody files a claim with the insurance company, the insurance company can deny it and be sued in civil court, but the weight of evidence is different there.

Mr. Williams said he would support something like that, but in the case of domestic violence, that is still felonious and intentional killing. Chairman James confirmed that was correct.

Fred L. Hillerby, Lobbyist, American Council of Life Insurance, referred to Exhibit D which is a proposed amendment to A.B. 159 stating "Any life insurance company making payment according to the terms of its policy shall not be subjected to additional liability if such payment is made without actual knowledge that the beneficiary was prohibited from receiving such payment pursuant to this section." Mr. Hillerby said with regard to conspiracy, he believes it would take some time to prove and the benefit would have already been paid. He pointed out NRS 688A.410 requires payment within 30 days of the death of the insured.

Senator Wiener asked Mr. Hillerby if there is a distinction between "actual knowledge" and "knowledge." Mr. Hillerby surmised yes, indicating the language was provided to him by his client’s legal division.

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, added "actual knowledge" is different from what would be referred to as "constructive knowledge," if a person has reason to know something, but does not actually know it.

Chairman James suggested the language should probably be "knowledge" or "reason to know." Mr. Hillerby said he was willing to do whatever the Senate Committee on Judiciary feels is the best way to deal with the issue.

John C. Morrow, Lobbyist, Washoe County Public Defender, said he thinks the difference between a real voluntary manslaughter and an original charge of murder reduced to voluntary manslaughter for the purposes of plea bargaining is confusing the issue of this bill. He pointed out the insurance companies need to distinguish the difference between a real voluntary manslaughter and murder reduced to voluntary manslaughter and suggested that perhaps there should be some language in the bill to distinguish when a real murder becomes a voluntary manslaughter as a plea-bargaining tool.

Chairman James suggested taking out "convicted of murder" and indicating "a person who murders the decedent is not entitled to be a beneficiary." He suggested it also deals with the insurance industry’s problem because it does not depend on a criminal conviction. He said if it is believed that person committed the murder, it would be a civil case and governed by a preponderance of the evidence standard, as opposed to waiting for the criminal justice system to either go through the whole process of getting a conviction of murder, which has a beyond the reasonable doubt standard, or going through the plea-bargaining process and pleading to a different offense. Chairman James furthered if the alleged murderer was not convicted or pled down to a lesser charge, that would still not prevent the insurance company from bringing a civil action to prove by a preponderance of the evidence that the person committed a murder. He referenced this is what was done in the O.J. Simpson case.

Mr. Morrow pointed out the Simpson case involved a wrongful death at the civil level and he said he did not know whether the policy constraints of the insurance policies would preclude someone from getting the proceeds in that situation or not.

Chairman James said the only reason the criminal standard is present in A.B. 159 is because of the words "convicted of murder." He pointed out as long as the result of the proceeding is not a deprivation of liberty, it is a civil case and in a civil case it is a preponderance standard.

Mr. Graham confirmed Chairman James’ point, however Mr. Graham said he thinks the intent is to minimize litigation and if certain events occur, the litigation is not necessary. He added the bill language could state "a person convicted of the murder, or after initially being charged with murder, if convicted or pleads to voluntary manslaughter or conspiracy."

Chairman James said he did not think the objective of A.B. 159 is to limit litigation, but rather to get a just result. He said he was concerned about the voluntary manslaughter and plea-bargaining issue because that may not always provide a just result. For example, if it is a voluntary manslaughter situation involving domestic violence, it may not be just to deprive that abused person of the only thing they may have to take care of their family or themselves. Chairman James furthered this is why the conviction standard is not the best standard to which to adhere in A.B. 159.

Mr. Hillerby said his concern with the bill is what the law says as to whether the insurance company should or should not pay out. He stated he is sure the insurance industry does not want to get into a situation where they would have to initiate litigation to determine whether they were going to pay or not.

Chairman James pointed out that is what the California statute does. Mr. Hillerby indicated that he understood, but if the insurance company decides to deny a claim because the law says it is not supposed to be paid, he realizes that could result in litigation.

Chairman James stated if the insurance company did not pay out and the court did not believe that person committed the murder, the insurance company probably would wind up in court. He furthered the California statute is probably written the way it is to avoid all the vagaries of plea bargaining. Chairman James suggested further research into some of these issues.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, said it seemed to her the direction the testimony on A.B. 159 had taken was that ultimately the insurance company can decide if somebody is guilty of murder. Chairman James interjected that is not the direction the testimony had taken and emphasized juries decide cases. Ms. Lusk continued that discussion was about changing the standard to a preponderance of evidence in the civil court, and her feeling is very strong that if the criminal court cannot prove murder under the proper standard for murder, there ought to be no penalties as if a murder were committed. She furthered plea bargaining creates many problems when it results in the consideration of creating a whole other set of courts to respond.

Chairman James asked Ms. Lusk if she supported the bill as written with regard to voluntary manslaughter. Ms. Lusk said she saw real problems with expanding to voluntary manslaughter. She said she understood the questions being raised about the statute of limitations with regard to conspiracy. She added she would rather have the bill as written, where decisions would be made in a criminal court, rather than to have a civil situation where the insurance company is making decisions that it will not pay even though the criminal courts are not convicting.

Chairman James pointed out that all of the states’ statutes in Exhibit C provide for these cases to be civil cases, not just California’s statutes. Ms. Lusk said she understood that has been the direction of law over a period of time, but she does not like the spread into civil courts where there is no criminal conviction. She added this is not the only area where it is a matter at issue.

Chairman James pointed out that possible consequences of a conviction in criminal court are a deprivation of a person’s liberty or a person’s life. He said those are two situations for which the United States Constitution provides heightened standards. The consequence of not receiving money is not something the United States Constitution recognizes as requiring a person to go through criminal court procedures.

Mr. Williams said he did not know all the facets of voluntary manslaughter convictions, but if a person kills a member of his or her family and is convicted of voluntary manslaughter, the insurance company should not have to pay that individual the benefits when the benefits could go to the other surviving family members.

Chairman James said this would not just apply to a family member, but any beneficiary under a life insurance policy. He furthered the Senate Committee on Judiciary will analyze this matter in further detail.

There being no further testimony, Chairman James closed the hearing on A.B. 159 and opened the work session by introducing Senate Bill (S.B.) 232.

Chairman James said there was testimony on this bill about the placement of siblings together, wanting it to be a preference, not a mandate. He asked Mr. Wilkinson if it would be possible to put a preference in the statute.

Mr. Wilkinson replied he thought it would be possible to put in a preference without making it a requirement.

Chairman James called for a motion to amend and do pass S.B. 232.

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Chairman James opened the work session on S.B. 233.

Chairman James recalled that the committee had considerable discussion about this bill with Scott Walshaw (L. Scott Walshaw, Commissioner, Division of Financial Institutions, Department of Business and Industry) and various lobbyists. Chairman James said the notice issue has been rewritten in the proposed amendment because of the ambiguity of the rate of interest. He added the certified-mail issue has been stricken because similar statutes do not require certified-mail of such notices. Chairman James called for a motion to amend and do pass S.B. 233.

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Chairman James opened the work session on S.B. 234.

Chairman James stated this bill was requested by the attorney general’s office and supported by Community Action Against Rape. He said he thought there was some uneasiness among the Senate Committee on Judiciary and asked Mr. Graham if he had something to add.

Mr. Graham said the question arose over the number of conspiracies that people are pled down to and John Morrow, from Washoe County Public Defender’s Office, had indicated there were probably no plead downs in Washoe County. Mr. Graham said he checked with the Clark County District Attorney’s Office, Crimes Against Women and Children Unit, and between 15 to 20 cases a year are pled down from the underlying charge of the sexual offense. He furthered the Clark County District Attorney has never charged a conspiracy without the underlying offense being present. He added if this bill were enacted, the Clark County District Attorney’s Office would be netting in another 15 to 20 a year who were probably guilty of the sexual offense but are pled down to conspiracy.

Chairman James asked Mr. Graham if in all cases the included offense was not charged as well. Mr. Graham stated that was correct.

Chairman James accepted a motion to do pass S.B. 234.

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Chairman James opened the work session on S.B. 264.

Chairman James asked if the Senate Committee on Judiciary received the requested additional information on this bill. He learned the requested additional information had not yet been received, and said this bill would be held over to another work session.

Chairman James opened the work session on A.B. 25.

Chairman James said there were no proposed amendments on this bill, it merely removes the sunset provision. He called for a motion to do pass A.B. 25.

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Chairman James opened the work session on A.B. 79.

Chairman James said there was one minor amendment regarding the application of the bill to persons discharged from parole on or after the effective date of the act, and he called for a motion to amend and do pass A.B. 79.

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Chairman James opened the work session on A.B. 80.

Chairman James stated, after studying A.B. 80 for some time he understands how it works, but does not understand why the Assembly Committee on Judiciary removed the hearing requirement.

Senator Wiener said her interpretation was it had to do with a person being held incarcerated in another jurisdiction. Chairman James said the courts could make a decision that would either continue a person’s parole or wait until a later date to continue parole. He asserted the question is between those two decisions whether a person is in prison or out of prison for that period of time.

David M. Smith, Management Analyst, State Board of Parole Commissioners, Department of Motor Vehicles and Public Safety, said the bill as originally conceptualized had the language regarding waiver of the revocation hearing. He said he has since seen some new case law which upheld another parole board taking action at a revocation hearing revoking parole for someone incarcerated in another jurisdiction because it was found that the new conviction was grounds for revocation. He said this bill specifically has to do with parolees convicted of new felony crimes outside of Nevada.

Chairman James accepted a motion to do pass A.B. 80.

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There being no further business, Chairman James adjourned the full committee meeting at 10:00 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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