The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, March 26, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Silvia Motta, Committee Secretary

OTHERS PRESENT:

Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, introduced the ratification bill, S.B. 453, (Exhibit C. Original is on file in the Research Library.) He explained that in order to avoid erroneous references in the Nevada Revised Statutes (NRS), at the end of each session, the new bills are gathered and thoroughly inspected for corrections. He was asked by Senator Wiener if the changes would be reflected in the statutes by the next legislative session and if there was a particular form to be presented. Mr. Wilkinson elaborated the entire NRS is broken into chapters and sections, each section is carefully reviewed by various staff members of the Legal Division before changes are made; the complete process may take up to 4 months until the final form is printed.

There being no further testimony, Senator James closed the hearing on S.B. 453, then opened the hearing on S.B. 484.

Dennis DeBacco, Supervisor, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol Division, Department of Motor Vehicles and Public Safety, spoke in support of the bill and on behalf of the Reno Police Department, the Washoe County Sheriff’s Office, and the Department of Motor Vehicles and Public Safety (DMV&PS). He said S.B. 484 offers the State of Nevada a legal structure to create a national crime prevention and privacy compact system in collaboration with federal and state agencies to exchange history records. He stated statutory provisions allow various licensed agencies and regulatory boards to conduct background investigations for criminal and noncriminal justice uses; i.e., individuals who apply for occupations as caretakers, certified school teachers, or daycare providers.

Mr. DeBacco explained that under this measure, the Federal Bureau of Investigation (FBI) is compelled to authorize the use of the Interstate Identification Index file (III System). In addition, member states would be required to release background information to the repository, other states and federal government agencies in a timely manner. He continued, the measure will also allow for counsel to monitor the III System ensuring accuracy, security and proper dissemination of records.

Senator Washington asked for the definition of "sealing a record" and "expunging the record." Mr. DeBacco indicated criminal history records are not expunged, only sealed in the State of Nevada. There are specific guidelines within the NRS statutes that the repository and other government agencies maintain throughout the process. To describe the sealing procedure, he said, a petition to seal is filed through the courts, the court directs the agencies where the original event occurred to seal their record; the FBI and the repository subsequently will notify the national indices (National Identification Index and the National Fingerprint File); later the record is purged from the systems. He added, with the exception of some gaming provisions, a sealed record is treated as if it never existed or the incident never occurred. He stated the content of the record is never exposed except for special uses, like for a gaming license and certain offenses associated with gaming. The gaming industry has the authority to review sealed records.

Mr. DeBacco told the committee that Nevada state’s repository is prepared to implement the provisions for the compact system without any consequence. He mentioned Montana being the only state that has approved unanimously of the compact system; and if the compact agreement was to be ratified in the State of Nevada, the new system could become a national law. He reiterated the repository is ready to carry out the new duties, with the exception of money refunds, due to the lack of mechanism. He stressed the length of time it takes to receive background information; i.e., to adopt a child. He claimed the state’s repository takes 5 to 7 working days to manually prepare and mail an information request to the Federal Bureau of Investigation. Whereas, the FBI having approximately 40,000 requests per day, may takes 4 to 6 months to mail back the information. Under the new electronic system, the request would be processed within 2 to 3 days.

Senator McGinness referred to page 9, line 26 of S.B. 484, under "Article VII. Ratification of Compact . . . When ratified, this Compact has the full force and effect of the law within the ratifying jurisdictions. The form of ratification must be in accordance with the laws of the executing state." Then he asked if the measure would authorize new groups to use the system. Mr. DeBacco assured the committee the measure would only allow those occupational groups who are already authorized and are recognized in the statutes to use the electronic system. He clarified that the main functions in the system are to identify the occupational groups, establish what noncriminal justice uses there are and how informational records are disseminated.

Senator Washington asked if the system includes analysis of "deoxyribonucleic acid (DNA)," and the definition of the III System. Mr. DeBacco replied the compact system does not deal directly with DNA records, except when references are made through the sex offender registry. However, the NRS requires that in certain types of cases, DNA samples be taken and analyzed. He further explained part of the system is utilized by law enforcement agencies, the courts and the district attorney’s office; DNA is not part of records management, it is more of a forensics function. In response to Senator Washington’s second question, Mr. DeBacco said the "III System" is a computer system maintained and used by the FBI under the national crime information and organization since the early 1960s.

Chairman James voiced concern regarding the manner in which the bill was written on page 6, line 8, of S.B. 484; "Article IV. Authorized Record Disclosures . . . . the FBI shall provide on requested criminal history records, excluding sealed record information, to state criminal history record repositories for noncriminal justice purposes allowed by federal statutes, federal executive order, or a state statute which has been approved by the Attorney General . . . ." Senator James asked if Nevada statutes had to be approved by the United States Attorney General (USAG); and if so, would it be primarily because Nevada statutes would have to comply with the federal Privacy Act of 1974. Mr. DeBacco said the USAG’s office is only able to regulate the III System, not the Nevada criminal history records. However, before the repository conducts a national inquiry, the state policies are reviewed by the USAG’s office to ensure the State of Nevada is in compliance with section 552, Title 5 of the United States Code (U.S.C.).

Chairman James called attention to "Article VI. Establishment of Compact Council" on page 7, line 37 of S.B. 484, . . . "known as the Compact Council, which has the authority to promulgate rules and procedures governing the use of the III System . . . ." He spoke about 15 compact council members, including 9 party states, which are appointed by the U.S. Attorney General, not by local courts and wondered how those council members from another state would interpret "our" laws.

Senator James made reference to page 10, line 35 of S.B. 484, "Article XI, Adjudication of Disputes. . . The Council: (a) Has initial authority to make determinations with respect to any dispute regarding: (i) Interpretation of this Compact." Mr. DeBacco described the compact advisory board being similar to the existing one at the national level; one with the primary obligation to establish and process procedures in a uniform way in accordance with the national crime center.

Chairman James identified the compact as a "force of law." There was general discussion about the renunciation and repeal. Senator James narrated Article IX. Renunciation on page 10, line 7 of S.B. 484, " . . . (b) Become effective 180 days after written notice of renunciation is provided by the party state to each other party state and to the Federal Government." If repealed, he added, the notification would not be in effect for another 6 months. Chairman James then made an observation on line 17 and 25, on page 5, under Article III of the bill as the expenditures and ongoing responsibilities. "Each party state shall: (b) Establish and maintain a criminal history record repository, which shall provide: (i) Information and records for the national identification index and the national fingerprint file; and (ii) The state’s III System-indexed criminal history records for noncriminal justice purposes described in Article IV; (c) Participate in the national fingerprint file; and (d) Provide and maintain telecommunications links and related equipment necessary to support the criminal justice services . . . ."

Chairman James asked how many adoptions are presently held up because of delays on background checks. Mr. DeBacco reiterated primarily it would be held at the federal level. Senator James requested an example of minimum wage jobs, which require a background investigation.

Debora Williams, Records Manager, Washoe County Sheriff’s Office (WCSO), testified the City of Reno issues temporary work permits for minimum wage jobs that require a background check, such as in gaming, bartender, child care, assisting elderly people, or local ordinances. She stated there is a high demand for those types of jobs particularly in child care. During the background investigation, the employee is allowed to start and continue working until the background information is returned from the repository and the FBI; based on the information received, the employee will continue employment or is terminated. Ms. Williams gave an example of an incident at a day care center, where a bus driver was hired, had been working for 4 weeks, and had no local or current criminal history. Then 3 months later the federal records revealed he had 7 convictions of lewdness with a minor. Chairman James found the WCSO’s work-permit policy disturbing. Ms. Williams agreed with Senator James, and added, "But, you don’t [do not] necessarily want to keep those people from working even at minimum wage jobs." Mr. DeBacco concurred with Ms. Williams reiterating conditional employment is offered even beyond minimum wage throughout the state. Ms. Williams stressed the consequences when record checks are delayed 4 to 6 months, in comparison to 5-7 days via the electronic system if the compact was to be approved.

Mr. DeBacco indicated, nonetheless the repositories are not precluded from the national indices to develop an instant background check when it is related to a gun purchase, since the "Brady" handgun violence prevention act. He pointed out page 9, line 40 of S.B. 484, under Article VIII, "Nothing in this Compact diminishes or lessens the obligations, responsibilities, and authorities of any state . . . ." He emphasized there is communication between the state of Nevada’s repository and other states on a daily basis, with much success. There is also great excitement over the new system with anticipation of an effective operation. He mentioned it has taken the states’ repositories, the FBI and the National Consortium for Justice Information and Statistics (SEARCH) approximately 13 years to create and approve the uniform compact through the U.S. Congressional process.

Mr. DeBacco reminded the committee that the FBI has taken into consideration all the requests from the State of Nevada to authorize users and establish the dissemination process, and that the Nevada legislative role is described in the Privacy Act of 1974 of the United States Code.

Mr. DeBacco concluded his testimony by offering a resource material guide from the Bureau of Justice Statistics titled, "National Crime Prevention and Privacy Compact," (Exhibit D. Original is on file in the Research Library.) for the committee to evaluate.

There being no further testimony on S.B. 484, Chairman James closed the hearing and referred to S.B. 492.

David W. Wasick, Administrative Counsel, Clerk of the Supreme Court, Supreme Court, addressed a number of problems that have surfaced recently under NRS 17.115 and Nevada Rule of Civil Procedure, Rule 68, pertaining to judgment offers in civil procedures. He said in part, S.B. 492 was proposed to further expand the judgment-offer provisions. He indicated Rule 68 was designed to allow for civil actions to settle prior to trial, to avoid extensive litigation and costly trials. However, on many occasions, the courts have interpreted NRS 17.115 differently from its original intent. For example, if a plaintiff fails to obtain a favorable judgment after a civil trial under the current law, the plaintiff may be penalized for interest, attorney fees and any other cost incurred.

Chairman James mentioned the definition of judgment offers; such as, "statutory offers" and "rule offers." He explained the "statutory offer" is considered under NRS 17.115 and a "multi-party claim" would be under the civil Rule 68. An offer could be made under both measures; then the recovery for interest, court costs, attorney fees and witness fees are allowed, except no witness fees can be awarded under civil Rule 68. Mr. Wasnick concurred and pointed out NRS 18.110 does provide for witness fees in civil matters.

Matthew Sharp, Lobbyist, Nevada Trial Lawyers’ Association, spoke in favor of the bill. In his opinion, S.B. 492 would offer some conformity into NRS 17.115 and civil Rule 68, since there is some conflict among the rules to benefit both the defendant and the plaintiff. Mr. Sharp pointed out the advantage of creating uniformity would allow for attorneys to appropriately advise their clients of their rights and possibly reach a satisfactory resolution in a shorter time.

Senator James had reservations about making the proposed changes to the current law, without further testimony offered on S.B. 492, considering the impact it would have on civil actions.

There being no further testimony, Chairman James closed the hearing on S.B. 492.

Chairman James then asked the committee to consider a motion to authorize a committee bill draft and submit it as a potential waiver. Based on information received from A. William Maupin, Associate Justice of the Nevada Supreme Court, the way the statutes are written, it has been almost impossible to prosecute someone for "child-abuse murder" as "first-degree murder." Senator James stated that "first-degree murder" requires a premeditation element or malice of forethought making it almost impossible to prove the case. Justice Maupin suggested a simple change to read "felony murder," and the outcome would be very significant for the State of Nevada in years to come.

Chairman James requested a motion to authorize a bill draft request based on the explanations stated regarding child-abuse murder.

SENATOR PORTER MOVED TO REQUEST A BILL DRAFT PERTAINING TO CHILD-ABUSE MURDER.

SENATOR CARE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

* * * * *

There being no further testimony, Chairman James adjourned the meeting at 10:05 a.m.

RESPECTFULLY SUBMITTED:

Silvia Motta,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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