The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:40 a.m., on Monday, March 15, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Chairman James opened the meeting by introducing one bill draft request (BDR).

Chairman James asked for a motion for committee introduction of the BDR.

Chairman James opened the hearing on Senate Bill (S.B.) 359.

Ed Gobel, Lobbyist, Council of Nevada Veterans Organizations, referred to Nevada Revised Statutes (NRS) 159.052, section 1, paragraph (a), subsection 1, which currently provides that any petitioner can swear under oath that the person the petitioner is trying to establish guardianship over faces substantial and immediate risk of financial loss or physical harm or needs immediate medical attention. Mr. Gobel stated there needs to be a qualification of who determines that a person needs medical attention. He furthered section 1, paragraph (b), subsection 2, has no requirement of a qualification for the petitioner.

Ray Kelsay, Air Force Sergeants Association, said this bill came about as a result of his friends’ granddaughter trying to declare his friends incompetent and take over their finances. He said his friends had to hire an attorney to resolve the issue. He continued it is a shame for elderly people to have to spend their retirement funds to fight such a case and he would appreciate the Senate Committee on Judiciary helping to pass S.B. 359.

Chairman James said the new subsection addresses the need for immediate medical attention or substantial and immediate risk of financial loss. He asked how a physician or psychologist could opine on the financial loss issue.

Mr. Gobel said he had met a number of physicians who would know financial aspects, but this bill was really meant to address the need of medical attention. He stated a petitioner can potentially opine on whether or not someone has suffered financial loss and it would just have to be accepted that whoever signs the petition under oath is doing so truthfully in that respect.

Chairman James agreed with Mr. Gobel, but said the way the bill is written a doctor or a psychologist could certify there is an immediate risk of financial loss and that would be sufficient evidence. Chairman James said he did not think the bill was written the way it was intended based upon the situation Mr. Gobel described. He suggested amending the bill so the physician or psychologist would just deal with the physical harm or immediate medical attention matter.

Mr. Gobel said he would have no problem with an amendment to strike "substantial and immediate risk of financial loss." Chairman James said striking that language will make the bill clearer.

May S. Shelton, Lobbyist, Nevada Association of County Welfare Directors, said when going to court to petition for legal and physical custody, some relatives could be identified who might be a placement possibility at a later time. Those relatives would be encouraged to seek guardianship and Ms. Shelton said she did not know how this bill was going to fit in if a certificate to this effect has to be obtained. Ms. Shelton said she had talked to Mr. Gobel about amending the bill to apply to people over the age of 18 years, but not all children come through the child protective services system and they might have advantages taken of them. She said she was concerned that S.B. 359 could delay the placement of children. Ms. Shelton pointed out the Adoptions and State Families Act will require the county to move children through the system faster into permanent placements, and this bill is going to deter grandparents from taking children if they cannot afford to get a doctor’s statement. She added she did not think the aspect of financial loss would apply to children.

Chairman James said if the basis is on physical harm or need for immediate medical attention, and the individual under consideration cannot personally respond, thus requiring a professional’s opinion, it seems the court would need that opinion. He said if the courts are going to base their determination on physical or psychological facts, the facts need to be well-grounded.

Ms. Shelton said she had checked with the Washoe County Public Administrator as to whether S.B. 359 would have any delaying effects on taking guardianship of their wards. She said most of the referrals the Washoe County Public Administrator receives come from physicians, the medical community, or nursing homes, but occasionally the referrals come from outside requiring them to obtain some certification. She added for this reason the Washoe County Public Administrator may have some concerns with S.B. 359 as well.

Chairman James pointed out it is significant for someone to have his or her property and finances placed in the hands of another, so it seems appropriate to have an additional modicum of proof of the person’s physical state.

There being no further testimony, Chairman James closed the hearing on S.B. 359 and opened the hearing on S.B. 360.

Robert Crowell, Lobbyist, Nevada Judges Association, said S.B. 360 was requested by the Nevada Judges Association. The bill removes the mandatory sentencing requirements for petit larceny, removes the mandatory bail requirements for domestic violence, and changes the driving under the influence (DUI) violation community service hours from 96 hours to 48 hours. He stated this bill is not intended to be soft on crime, but seeks to address laws that are not working as the Legislature intended them to work.

Robey B. Willis, Lobbyist, Nevada Judges Association, said he felt the petit larceny statute currently takes discretion away on sentencing. He stated the judges should make the sentencing decisions based on the facts in front of the court, not as a standardized solution to all petit larceny violations.

John Tatro, Justice of the Peace, Department II, Carson City, and Lobbyist, Nevada Judges Association, said the domestic violence statute needs to be changed giving judicial discretion for setting bail. He furthered with regard to a DUI offense, most judges give the DUI offender a choice of going to jail or doing community service. He said 96 hours of community service equates to 12 8-hour working days versus serving 2 days in jail on the weekend. He indicated Nevada’s jails are already overcrowded. Judge Willis pointed out Nevada has a number of people in professions that could help the community rather than going to jail.

Senator Wiener suggested amending the language to "at least 48 hours." Judge Willis said he thought that would be a compromise that would work.

Chairman James inquired about domestic battery bail. He asked if this matter was in the domestic violence bill in the Assembly. Judge Willis replied it was not, it was in a separate bill over bail conditions.

Karen Kavanau, Court Administrator and Director of the Administrative Office of the Courts, Office of Court Administrator, said when the Legislature sets mandatory sentences or bails that may violate the separation of powers.

Chairman James pointed out the prerogative to set terms of incarceration is vested with the Legislature. He asked, having just adopted this statute last session, whether the facts and circumstances exist to repeal it right away.

Stephen W. Driscoll, Lobbyist, City of Sparks Municipal Court, submitted a graph (Exhibit C) in support of the bill tracing transactions in the court. He pointed out the predominant reason for the drastic changes in the graph were the mandatory changes and domestic violence laws, as well as some of the DUI changes. He stressed those were transactions dealing with the new bails, bail refunds because of the higher amounts well in excess of maximum possible fines dealing with fine payments, community service hours, residential home compliance and the monthly review of domestic violence counseling. He added the City of Sparks Municipal Court would like to have more discretion in dealing with domestic violence matters because the situation may not warrant a full session of counseling.

Laurel A. Stadler, Lobbyist, Mothers Against Drunk Driving, Lyon County Chapter, addressed section 3 of S.B. 360 saying she does not support any reduction in DUI sanctions. She said she would much rather see 48 hours of completed community service rather than 96 hours of community service that may be partially written off. Ms. Stadler said she would like to feel confident that community service is adequately supervised. She added there is enough work in the community that is not too confidential or too technical for DUI offenders to complete. She continued she has heard from friends of DUI offenders that community service work is often written off without the full hours being performed. Ms. Stadler suggested instead of giving people many community service hours, giving them realistic amounts and ensuring those hours are actually fulfilled in the community.

Senator Wiener asked Ms. Stadler if her concerns would be resolved with a language change in S.B. 360 on page 5, line 13, "to perform at least 48 hours of work for the community." Ms. Stadler said she is not sure her concern is with the wording of the statute or the actual follow-up in each of the jurisdictions.

Chairman James questioned how unfulfilled community service can be written off. Ms. Stadler said she would appreciate it if there is any way the Senate Committee on Judiciary can help enforce this matter. Chairman James said if Senator Wiener’s language is put into the bill, that will make it clear that a DUI offender has to perform at least 48 hours of community service.

David S. Gibson, Lobbyist, Clark County Public Defender, said when he goes to court with his clients in DUI cases, the judges are very careful to make sure they are getting the reports from the agency where the DUI offender is doing the community service. He added if a person does not have the community service done, in some instances the person gets a continuance to fulfill the required time. In other instances the DUI offenders are held in contempt and put in jail, making the point that the required community service hours must be done. He continued he did not know of any exceptions where agencies falsified community service reports. Mr. Gibson furthered that he agreed with the bill.

There being no further testimony, Chairman James closed the hearing on S.B. 360 and introduced one bill draft request (BDR).

Chairman James asked for a motion for committee introduction of BDR S-815.

Chairman James asked for a motion to amend and do pass S.B. 359, the proposed amendment being to take out the words "financial loss" on page 2, line 1, as discussed by the committee.

There being no further business, Chairman James adjourned the meeting at 10:45 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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