The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, March 19, 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:

Silvia Motta, Committee Secretary

OTHERS PRESENT:

Chairman James opened the hearing with Bill Draft Request (BDR) 41-1644.

Chairman James requested a motion for introduction of the bill draft request.

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Chairman James directed attention to BDR 2-851 and BDR 14-613 and requested a motion for introduction.

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Chairman James opened the hearing on S.B. 361.

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, testified that S.B. 361 is in part a measure that was introduced in the last session, Senate Bill 132 of the Sixty-ninth Session. He referred to a letter dated March 17, 1999 (Exhibit C), and said the new provision would allow the courts to handle habeas corpus cases without misconstruing the law. He explained that in order for the forfeiture to take place, the original language of both bills was adopted into the 1995 civil cases.

Mr. Sarnowski expressed, in his opinion, while there have been some classic civil cases regarding the conditions of jail confinement, the Nevada district court judges have accurately carried out their duties when making findings in habeas corpus cases. He pointed out the attorney general’s office is requesting, through this measure, to clarify the 1995 enactment, and to add the habeas corpus within the civil cases, including jail credit to avoid unnecessary litigation against the state. He offered an example where prisoners have filed several inconsequential habeas cases, seeking damage relief or credit for jail time. He spoke of cases filed in district court claiming post-conviction or jail-time credits, and of other similar cases to the Dotson v. State and Strickland v. Washington appeals (Exhibit C).

Mr. Sarnowski spoke about the effective counsel representing prisoners in a court trial. He said the proposed changes are to provide Legislature with the means to overrule the Nevada Supreme Court’s decision in chapter 34 of Nevada Revised Statutes (NRS). He reiterated the bill would clarify that even when counsel is appointed in a capital case, prisoners would not be able to claim ineffective representation, or be entitled to retaliate on the issue unless there is conclusive evidence. He added, if the Legislature fails to correct the problems outlined in Exhibit C, endless litigation and resolution delays will continue in capital cases in the State of Nevada. He recommended the habeas courts must order the district attorney, rather than the attorney general’s office, to respond to cases where prisoners dispute their conviction or sentence. He established that the most controversial issue in this bill, would be the "sham force or pretence" proceeding, taken from the Nevada Supreme Court’s decision.

Senator Care questioned how a proper petitioner is distinguished from a frivolous one, or like in the Dotson v. State matter.

Mr. Sarnowski replied, in many cases it is very difficult; however, the judge will review the petition and listen to the petitioner’s explanation to make his final decision; it becomes a judgement call. If the petitioner claims, for example, that the trial judge did not act within the law during sentencing, the court transcript could prove the petitioner wrong.

Chairman James asked if an appellant argues the counsel’s effectiveness, would the courts implement the Strickland standard "Reasonable effective counsel" on the first or second habeas action.

Mr. Sarnowski replied, pursuant to the Nevada Supreme Court issues regarding ineffective counsel, the courts must apply the federal constitutional standard (the Strickland standard) in order to analyze the counsel’s performance. He explained that the constitutional right to have a habeas attorney appointed is terminated when direct appeal is filed. When the direct appeal is concluded, the petitioner is given the opportunity to file a state habeas petition in the county of his conviction. Chairman James pointed out that under the Sixth Amendment of the United States Constitution, any individual in a criminal case is entitled to have representation. He inquired if the courts were implementing the Strickland standard, "Reasonable effective counsel" on first or second habeas corpus claims.

Mr. Sarnowski clarified that the standard provisions would apply to any habeas counsel, even if the attorney was retained and not appointed, whether the action is filed in district court or federal court. He added that even when counsel is routinely appointed in capital cases, there is no requirement under the Nevada Constitution or the United States Constitution law to appoint a habeas lawyer.

Gemma Greene, Lobbyist, Deputy District Attorney, Washoe County District Attorney’s Office, and Nevada District Attorneys’ Association, voiced her support for S.B. 361.

Michael Pescetta, Assistant Federal Public Defender, Law Offices of the Federal Public Defender, testified in support of the measure. He clarified the statutory post-conviction and the habeas law, in chapter 34 of NRS, were combined in 1993. The existing law does not clearly state when a subsequent petition should be filed. He suggested changing the language to "a first petition . . ." in NRS 34.726, subsection 1. He recognized a trial or direct appeal hearing is delayed in part due to the inexperienced attorneys. In capital cases, most often, the attorney is given the responsibility to litigate and enforce the federal constitution with the death penalty. He urged that reducing the quality of counsel may not be the right way to proceed.

Mr. Pescetta suggested enforcing the standards, eliminating the habeas capital cases and simply sending the direct appeal into federal proceedings to reduce long years of litigation. He mentioned that in 1998 the Nevada Supreme Court amended the Supreme Court Rules, Rule No. 250, which copes with capital habeas corpus cases and has provisions that have no standards. He stated to assume that we have a perfect system in the state habeas corpus would be fallacious.

Chairman James inquired about the death penalty resources to train attorneys obtained last session. Mr. Pescetta revealed that the money was utilized at the National Judicial College for education programs for the judges, prosecutors and defense attorneys. Mr. Pescetta said, in his opinion, the program was not as effective for defense counsel; defense attorneys are not compelled to take this or any sort of education program. He disagreed with prior testimony in regards to penalizing the state and the option of reducing the standard provisions. He pointed out more often counsel is appointed in capital cases simply because an attorney has to be appointed, and most of the time the attorney has no experience or the incentive to process the matter expeditiously.

Mr. Pescetta suggested enforcing the requirements on effective counsel, and eliminating some of the proceedings. He offered, other attorneys have conveyed to him that capital proceedings are a waste of time; that it simply causes delay to the outcome of the trial.

Mr. Pescetta gave an example of a state post-conviction case, where relief was denied due to ineffective counsel. Later it was discovered that the defense attorney failed to find out that his client was handicapped or mentally retarded; therefore, neither one was capable of handling the original proceedings.

David M. Schieck, President, Nevada Attorneys for Criminal Justice, concurred with Mr. Pescetta’s testimony. He stated there are attorneys representing capital cases without qualifications; years later in federal court the subsequent defense attorney will have to spend more time and effort arguing issues that should have been covered in the first hearing. He concurred effective counsel would assist in expediting the cases. Mr. Schieck remarked having no objection to adding a provision in section 7 of S.B. 361, penalizing a habeas petitioner if he or she files an action and is unable to support their accusations.

There being no further testimony, Chairman James closed the hearing on S.B. 361, then opened the hearing on S.B. 326.

William Henry, Senior Litigation Counsel, City of Las Vegas, explained that this bill came as a result of an opinion handled in the Ninth Circuit Court of Appeals in 1998. He explained that the City of Las Vegas is not in the position to enact city ordinance, chapter 606A of the City of Las Vegas Municipal Code. He also indicated there is no municipality or county in the State of Nevada that has the constitutional authority to regulate the zoning where a First Amendment business, or sexually-oriented business should be placed. He concluded, in order to implement the law of this measure in the State of Nevada, the Legislature must impose the responsibility on the district court judges to expedite the process on First Amendment petitions.

There being no further testimony, Chairman James closed the hearing on S.B. 326 and opened the work session by introducing S.B. 195 and S.B. 315.

Senator Care spoke about previous arbitration commission testimony which indicated that some insurance companies do have policies requesting trial de novo regardless of arbitration rewards of less than $500. He expressed his uncertain support for S.B. 315. However, he would be in favor if the measure would prevent defendants from abusing the process. Senator Care inquired about the effective date of October 1, 2000, and how it would affect those actions filed on or before the due date of October 1, 2000, but have a trial to commence after the aforementioned due date.

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, explained the measure would apply respectively, regardless of where a case may be in the process. Chairman James recommended amendment on the bill to ensure inclusion of all actions filed on or after the effective date.

The committee decided to take action on S.B. 315, rather than S.B. 195.

SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 315.

SENATOR WIENER SECONDED THE MOTION.

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Chairman James introduced S.B. 148 into the work session.

Carlos Concha, Chief, Parole and Probation, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, requested, on behalf of the sentencing commission, this bill include automatic probation for Category E felony at the time of arraignment. Those cases, he stated, where defendants have two or more prior convictions with an automatic prison sentence, the pre-sentence investigation (PSI) report will continue to be processed and submitted, as done in the past. He declared that NRS 176.159 states the PSI report must be attached to a judgment of conviction even when the PSI hearing is waived.

Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, told the committee that based on the information obtained from District Judge James W. Hardesty, Second Judicial District, it takes 30 to 40 days to receive the PSI reports by the courts. While the report is being prepared, the courts have to schedule a second hearing for sentencing and the defendant may spend 30 to 40 days in jail if they cannot obtain bail, or may be out of custody without supervision.

Chairman James requested a motion to amend and do pass S.B. 148.

SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 148.

SENATOR WIENER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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The committee then heard comments on S.B. 321.

Chairman James referred to the work session summary (Exhibit D), which lists the corrections requested regarding completion of officers’ training, the reclassification of peace officers from Category III to Category II, and the badges problem. He clarified the training will provide for structural and organizational operation of the facility; assisting supervisors; maintaining order and discipline; maintaining a humane, safe and sanitary environment; disciplinary, protected and administrated segregation.

SENATOR PORTER MOVED TO AMEND AND RE-REFER S.B. 321 TO THE SENATE COMMITTEE ON FINANCE.

SENATOR CARE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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The work session then continued with S.B. 322.

Chairman James referred to Exhibit D and requested a motion to amend and do pass.

SENATOR CARE MOTIONED TO AMEND AND DO PASS S.B. 322.

SENATOR TITUS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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The committee then considered S.B. 360.

Chairman James pointed out Senator Wiener’s proposed amendment to the provision of "at least" 48 hours of community service required. No other change was agreed upon by the committee. Then, the chairman requested a motion to amend and do pass.

SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 360.

SENATOR WIENER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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The committee continued with S.B. 326. Chairman James asked for a motion.

SENATOR PORTER MOVED TO DO PASS S.B. 326.

SENATOR WIENER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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The meeting concluded with S.B. 361.

Senator Care expressed concern about the proposed amendment and stated he would need more time to analyze the measure, especially since there are several individuals pending on death row in the State of Nevada. He insisted that every benefit of the doubt should be mandatory under this provision in regards to capital cases. Senator Titus voiced similar concerns. The committee agreed not to take action on the bill until further examination.

There being no further testimony, the meeting was adjourned by the chairman at 10:27 a.m.

RESPECTFULLY SUBMITTED:

Silvia Motta,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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